UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Gift  of 
Howard  Surr 


iw' 


TREATISE 


LAW   OF   EVIDENCE 


FROM    THE 

EIGHTH  LONDON  EDITION, 
WITH  CONSWERABLE  ADDITIONS. 


BY  S.  MARCH  PHILLIPPS,  ESQ. 

AND 

ANDREW  AMOS,  ESa. 

BARRISTER  AT  LAW. 


"U/itfb  OAioteA  twvo-     «%e[etert-ce5  to-   Olbtmlica^   A&aJ^eS. 


BOSTON: 

PUBLISHED  BY   ELISIIA   G.  HAMMOND. 

18  3  9. 


T 


Eulered  according  to  llic  Act  of  Congress,  in  the  year  1839,  by 

E  L  I  s  H  A  G.  Hammond, 

ill  the  Clerk's  Office  of  the  District  Court  of  Massachusetts. 


"Worcester  : 
Printed  by  Spooner  &  Howland 


//rjS 


7/' 

ADVERTISEMENT 


EIGHTH     LONDON     EDITION. 


The  work  now  presented  to  the  public,  is  an  enlargement 

of  the  first    Volume  of  the  last  Edition.     It  was   thought 

most  desirable  to  make  this  a  separate  publication,  and  not 

to  connect  it  with  the  details  of  particular  actions.     The 

presen^^^  therefore,  is  confined  to  the  enquiry  into  the 

general  prniciples  of  our  Law  of  Evidence  ;  and  the  rules  of 

Evidence,  applicable  to  particular  actions,  as  referred  to  for 

example  and  illustration. 
»        4  ♦        •-— -♦ 

My  friend  Mr.  Amos,  who  assisted  me  in  the  last  Edition, 
took  upon  himself  the  whole  charge  of  this,  and  completed 
the  greater  part  of  the  Work,  when  he  was  prevented  from 
finishing  it,  by  his  appointment  to  an  office  in  India,  in  the 
autumn  of  last  year.  At  that  time,  he  had  proceeded  in  the 
Work  to  the  end  of  the  Fourth  Chapter  of  the  Second  Part. 

On  quitting-OEngland,  Mr.  Amos  committed  to  Mr.  Gale 
the  charge  which  he  had  undertaken,  explaining  to  him 
his  own  views  of  what  remained  to  be  done.  Mr.  Gale 
commenced  with  the  Chapter,  "  On  tJie  admissihilily  of 
Parol  Evidence^  in  explanation  of  Written  Instruments,'^^ 
/page  710),  and  completed  the  remainder. 


306175 


ADVERTISEMENT. 

Tho  cliicf  part  of  my  duty,  in  preparing  this  Edition,  has 
consisted  in  revising  and  correcting,  making  additions  and 
alterations,  as  I  thought  advisable.  In  doing  this,  I  have 
bestowed  all  the  care  and  attention  in  my  power. 

I  ought  to  make  some  apology  for  the  size  of  this  Vol- 
ume, Avhich  I  must  admit,  has  far  exceeded  our  calculation  ; 
and  yet,  I  douM  wlieth^  any  materialgreduction  of  the  size 
might  not  have  lessened  the  usefulness  and  value  of  the 
Work. 

S.    M.    PHILLIPPS. 
Whitehall^ 
July,    1838. 


CONTENTS. 


PART    THE    FIRST. 


CHAP.  I. 


Page 


Of  the  Exclusion  of  Evidence  in  certain  Cases,  and 

of  Incompetency  from  Defect  of  Understanding  % 

General  Rule  as  to  Credibility  and  Competency  -  2 

The  several-#4ounds  of  Incompetency                -  -  3 

Sect,  t.     Of   Incompetency   from    Want   of   Under- 
standing     -            -             -             -             -  -  4 

'GenerfQ  Rule        -               -      *         -               -  -  4 

Idiots — Lunatics                   -               -               -  -  4 

Children                -               -               -               -  -  5 

Account  given  by,  not  Admissible                 -  -  6 

CHAP.  II. 

Or    Examination  upon    Oath,   and   of   Incompetency 

from  Defect  of  Rehgious  Principle               -  -  7 

Principle  of  the  Rule  -  -  -  --7 

Import  of  Oatli                       -                -                -  -  8 

Form  of  Oath        -                -                -                -  -  9 

Religious  Belief— Religious  Principle                 -  -  11 

Examination  as  to  Religious  Opinions                  -  -  12 

Atlieists— Infidels                  -                -                -  -  11 

Examination  previous  to  Swearing        -                -  -  12 

Quakers  and  Moravians                        -                -  -  13 

Excommunication                  -               -               -  -  13 


VI  CONTENTS. 

CHAP.  in. 

Of  incompetency  from  Infamy  of  Character  -  -  14 

Distinction  between  Legal  and  Moral  infamy  -  -  14 

Principleof  the  Rule          -               -  -  -  15 

Propriety  of  Exclusion        -               -  -  -  15 

Sect.  I.  What  Offences  incapacitate  -  -  17 

Treason,  Felony,  Crimen  Falsi,  Forgery,  &c.  -  -  17 

Bribing  a  Witness — Conspiracy          -  -  -  17 

Gaming    -            -              -                -  -  -  18 

Outlawry             -                -                -  -  -  18 

Infamous  Punishment          -               -  -  -  18 

Sect.  II.  Extent  and  Effect  of  Disability  -  -  19 

Sect.  III.  Proof  of  Incompetency       -  -  -  19 

Proof  of  Judgment               -               -  -  -  19 

Sect.  IV.  Competency  how  Restored  -  -  20 

1.  Reversal  of  Judgment  -               -  -  -  20 

2.  Pardon,  Effect  ot             -               -  -  -  21 

Proof  of  Pardon            -                -   i%  -  -  21 

y.  Effect  of  Suffering  Punishment     -  -  -  23 

Felonies       -               -               -  -  -  23 

Misdemeanors             -               -  -  -  24 

CHAP.  IV. 

Of  the  Evidence  of  Accomphces,  Informers,  and  Self- 
Discrediting  Witnesses 

Sect.  I.  Of  the  Admissibility  of  Accomplices  -  25 

General  Rule      -               -               -  -  -  25 

Objections  to  Evidence  of  Accomplices  -  -  26 

Accomplices  competent     -               -  -  -  26 

Implied  compact  with  Accomplices    -  -^  -  27 

Practice  as  to  admitting  Accomplices  r  -  28 

Accomplice,  separately,  jointly,  indicted  t  -  28 

Breach  of  Implied  Contract                 -  -  -  29 

Principal  and  Accessary    -                -  -  -  29 

Accomplice  admissible  for  Prisoner   -  -  -  29 

Sect.  II.  Of  the  Confirmation  of  Accomplices  -  30 

General  Rule      -               -              -  -  -  30 


CONTENTS. 


VII 


Page 

Practice  requiring  Confirmation         -               -               -  30 

Extent  of  Corroboration      -                -                -                -  32 

Confirmation  as  to  Material  Fact       -                -                -  32 
Confirmation  as  to  the  circumstances,  and  as  to  the  Per- 
son              ...               -                 33,37 

Confirmation  by  several  Accomplices               -               -  38 

Wifis  of  Accomplice            -                -^                -                -  39 

Accomplices,  who                -                "                -                -  39 

Sect.  III.  Informers  and  Self-Discrediting  Witnesses  39 

Informers             ...                               -  39 

Witness  alleging  his  own  Dishonesty                -                -  40 

Witness  invalidating  an  Instrument — Indorser — Payee     -  41 

Person  bribed     -               -               -               -               -  41 

Subscribing  Witness          -               -               -               -  42 

Other  instances  -               -               -               -               -  42 

CHAP.  V. 

Of  the  Incompetency  of  Witnesses  from  Interest          -  43 

Principle  of  the  Rule          -               -               -               -  43 


\      CHAP.  VI. 

Of  the  Incompetency  of  the  Parties  to  the  Suit. 

General  Rule      -               -               -               -  -  43 

Policy  of  the  Rule               -               -               -  -  43 

Objections  against              -                -                .  -  43 

Answer  to  Objections         -               -               -  -  44 

Sect.  I.  Of  the  Rule  of  Incompetency  from  Interest 
with  reference  to  the  Parties  to  the  Suit  in  civil 
Proceedings. 

Principle  of  the  Rule           -                -                -  -  46 

Party  to  the  Suit  incompetent             -                -  -  47 

Ground  of  Incompetency    -               -               -  -  47 

Nature  of  Interest               -               -           "    -  -  47 

Interest  in  Costs                   -                -                -  -  48 

Members  of  Corporations     .               -               .  48^  49 

Inhabitants  of  Counties,  Parishes,  &-c.                -  -  50 

Co-defendant  in  cases  of  Judgment  by  default    -  -  50 

1.  Effect  of  a  Judgment  by  Default             -  -  50 

Defendant  incompetent  for  Co-defendant  -  51 

Defendant  incompetent  for  Plaintiff"        -  -  51 

Defendant  when  competent  for  Plaintiff"  -  52 


VIII  CONTENTS. 

Page 

In  Actions  on  tort    -                -                -  -  52 

Co-defendantsuffering- Judgment  by  default  -  52 

Co-defendant  when  competent  for  Co-defendant    -  52 

On  Assessment  of  Damages    -               -  -  53 

In  Ejectment           -               -               -  -  54 

2.  Effect  of  a  nolle  prosequi  -  -  -  55 
After  pleading  Bankruptcy  -  -  -  55 
Effect  of  nolle  prosequi  -  -  -  56 
Separate  Verdict     -               -               -  56, 57 

Effect  of,  in  restoring  Competency  -  -  58 

3.  As  to  a  separate  Verdict  at  the  Trial  -  -  58 
Co-defendant  in  tort  -  -  -  58 
Separate  Verdict — when  taken  -  -  59 
Party  named  in  Declaration,  but  not  sued  -  60 
A  Party  made  Defendant  by  Mistake  -  -  60 
Ejectment        -        -               -               -  -  61 

Sect.  II.  Of  the  Competency  of  Parties  to  Criminal 
Prosecntions,  and  of  the  Party  injured  by  the  of- 
fence. 

Party  injured       -                -                -                -  -  61 

Prosecutor           -               -               -               -  -  61 

Indirect  Interest  -               -               -               -  -  62 

General  Rule      -               -               -               -  -  63 

Party  aggrieved  in  Forgery                 -                -  -  65 

Prosecutor  when  incompetent  from  Interest       -  -  66 

Summary  Convictions          -               -               -  -  66 

Forcible  Entry     -               -               -               -  -  G6 

Exception  to  General  Rule                 -               -  -  66 

Stolen  Goods — Restitution                 -               -  -  67 

Property  recoverable  by  separate  Action           -  -  67 

Perjury                 -                -                -                -  -  69 

Fine  or  Imprisonment         -               -               -  -  68 

Defendant  in  criminal  Prosecutions    -               -  -  68 

Nolle  prosequi      -               -               -               -  -  68 

Plea  in  Abatement,  and  Judgment  by  separate  Verdict     -  69 

Judgment  by  Default          -               -               -  -  70 

CHAP.  VII. 

Of  the  Rule  of  Interest  with  regard  to  Persons  not 

Parties  to  the  Suit              -             -            -  -  71 

General  Rule       -               -               -               -  -  71 

Direct  Interest    -               -               -               -  -  72 

Indirect  Interest                  -               -               -  -  72 

Alteration  of  the  Law  as  to  Indirect  Interest     -  -  75 


CONTENTS. 


IX 


Page 
What  is  such  an  Interest  as^will  disqualify  -      76 

Nominal  Party        -  .  -  79, 80 

Bail  -  -  -  -  79,80 

Husband  and  Wife  -  -  -  -      80 

Surety  in  Replevin  Bond         -  -  -      81 

Persons  not  Parties  to  Proceedings         -  -      81 

Uncertain  Interest    -  -  -  -      81 

Competency  Presumed  -  -  -      82 

Amount  of  Interest  -  -  -  -      82 

Interest  in  Costs        -  -  -  -      82 

Balance  of  Interest  -  -  -      82 

Consolidation  Rule  -  -  -      84 

Collateral  Agreement  -  -  -      84 

Joint  Interest  in  subject  of  Action  -  -      85 

Partners  —  Co-contractor —  Co-obligor  Residuary 
Legatee — Next  of  Kin — Creditors — Specific  Leg- 
atees— Bankrupt — Insolvent — Creditor  of  Bank- 
rupt, &c. — Interest  in  Land — Tenant  in  Posses- 
session — Remainder-man — Tenant  by  Courtesy 
— Devisee— Executor — Legatee — Heir—Entitled 
to  Dower — Charge  on  Land — Rated  Inhabitant, 
&c. — Replevin  conusance  85 — 95 

Liability  over  -  -  -  -      95 

Broker— Sheriff's  Officer— other  Persons  97,  98 

Nature  of  the  Interest  in  these  Cases       -  -      99 

Servant  of  the  Plaintiff"- of  the  Defendant — Captain 


of  Ship 
Driver  of  Stage  Coach 
Result  of  Cases       -  .  - 

Other  Cases  of  Incompetency 
Liability  over  .  -  . 

Sale  of  land — Vendor  with  warranty 
Sale  of  Goods  ... 

Vendor  of  Horse      -  -  - 

Witness  proving  Property  in  Himself     - 
Actions  on  Bills  of  Exchange  - 
Liability  to  Costs — Accommodation  Bills 
Drawer  incompetent  for  accommodation  Ac- 
ceptor ... 
Accommodation  Indorser 
Agent  employed  to  discount    - 
Witness  to  prove  payment  to  Himself 
Cases  of  Incompetency  from  Costs 
Liability  arising  from  illegal  Contnact 
Effect  of  Stat.  3  &  4  W.  4,  c.  42,  §  26,  27    - 
Witness  liable  over  to  Defendant 

to  Plaintiff" 
Immediate  interest  not  within  the  stat. 

h. 


99,  100 

-  101 

-  101 

-  102 

-  102 

-  102 

-  102 

-  102 

-  104 

-  104 

-  104 

-  104 

-  104 

-  104 

-  105 

-  106 

-  106 

-  107 
-11.3 

109 
109 
110 


108- 


CONTENTS. 

Page 
Drawer  of  Accommodation  Bill  -  -     111 

Distinction  between  Witnesses  liable  over  to  Plaintiff 

and  to  Defendant  -  -  -    112 


CHAP.  VIII. 

What  is  not  such  an  Interest  as  will  disqualify. 

Connection  of  Witness  with  the  question  at  Issue             -  114 

Wishes  or  expected  Benefit                _                _                _  114 

Witness  in  same  situation  in  Civil  Cases           -               -  114 
Co-trespassers — Underwriter  in  policy                -             114,115 

In  same  Situation  in  Criminal  Cases  -                -                -  115 

Influence  of  Verdict  _  _  -  .  116 
Borrower  incase  of  Usury — Possibility  of  Action — Uncer- 
tain Interest — Actions  by  Executor — Specific  Legatee — 
Annuitant  under  a  Will — Creditor  of  Estate — Creditor  of 
Bankrupt,  &ic. — Mere  Trustee — Actions  respecting  Real 
Property — Policy  of  Insurance — Captain — Assignees  of 
Bankrupt           -                .                -                -          IIG— 121 

Witness  believing  Himself  interested                -               -  121 

Honorary  Obligation           -                -                -                -  122 

Interest  on  both  Sides        -               -               -               .  123 

Joint  Contractors                 .                _                -                _  124 

Partners  of  Drawer  of  Bill                   _                .                _  125 
Actions  on  Bills  and  Notes — Joint  maker  of  Note — Draw- 
er of  a  Bill — Accommodation  Drawer — Indorser — Ac- 
commodation Indorser — Maker  of  Promissory  Note   125 — 127 


CHAP.  IX. 

Of  certain  Exceptions  to  the  General  Rule  on  the  sub- 
ject of  Interest. 

Owner  of  Stolen  Goods  entitled  to  Restitution  -    129 

Persons  entitled  to  Rewards — to  Pardon  -  -     130 

Trial  for  Bribery — Informers — Other  Exceptions  131,132 

Inhabitants  of  County,  &c. — of  Hundred,  &c.  133, — 138 

Other  Exceptions  by  Statute — Local  Acts,  &c.  -     138 

Exceptions  from  Necessity — Public  Question — Agents, 
Servants,  &c. — Factors  and  Brokers — Servants  and  Car- 
riers— Agents  -  -  -  -  139 — 142 
Exceptions  on  Special  Grounds — Issue  from  Court  of  Equi- 
ty— Action  for  Malicious  Prosecution — Interest  in  Costs 
in  certiorari            -               -               -  -    142 — 144 


CONTENTS.  W 

Page 
Exceptions  to  prevent  an  abuse  of  Rule  of  Exclusion — 
Witness  offering  to  Release,  &c. — Legatee,  &c. — Inter- 
est acquired  fraudulently — Interest  acquired  since  cause 
of  Action — Underwriter  having  paid — Wager  on  Con- 
viction        .  -  -  -  -    144—147 

CHAP.  X. 

Of  the  mode  of  objecting  to  the  Competency  of  an 
interested  Witness,  and  of  the  means  of  restoring 
Competency. 

When  objection  to  be  taken  -  -  -  148 

Release — By  Minor  or  Guardian — By  one  of  several  Obli- 
gees, or  to  one  of  several  Obligors, — Several   Contrac- 
tors— Partners — Part    Owners — Residuary    Legatee — 
Stamp  of  Release — Undertaking  to  Release        -    151 — 155 
Member  of  Corporation  _  .  .  155 

Bail  ....     155,  15G 

CHAP.  XI. 

Privilege  of  withholding  Evidence,  and  Incompeten- 
cy of  Witnesses  to  give  Evidence  upon  particular 
Subjects. 

Sect.  I.     Of    the   Privilege   of   Parties  to  the    Suit 

from  being  Examined    '        -  -     157 

Rated  Inhabitants— Co-Plaintiff        -  -  -     159 

Sect.  II.     Incompetency  of   Husband  or  Wife,  Par- 
ties to  the  Suit  -  -  -     159 

Civil  Cases — Criminal  cases              -               -  159 

Exceptions           -                -                _                .  160 

Collateral  Proceedings  162—167 

Actions  between  Third  Persons          -  -    167 

Conversations  between  Husband  and  Wife        -  -     168 

Non-access         -               -               _               .  .    igg 
Exceptions  to  General  Rule — Forcible  Marriage — Rape — 

Assault,  &c. — Articles  of  Peace — Secret  Facts  1G9 — 171 

Wife  acting  by  the  Husband's  Authority           -  -     172 

A  Woman  represented  as  Wife        -               -  -    173 

Sect.  IH.     The   Exclusion  of  Matters    disclosed  ni 

Professional  Confidence         -  .    -     173 

General  Rule      -  -  -  -  -     173 


XII  CONTENTS. 

Page 
Nature  of  Privilege  -  -  -    173 

What  Persons  privileged — Counsel  or  Attorney  —Interpre- 
ter or  Agent — Barrister's,  or  Attorney's  Clerk — Person 
supposed  to  be,  but  not  in  fact  an  Attorney—Medical 
Advisers — Friends — Bankers    and    Stewards— Clergy- 
men— Clerk  to  Commissioners        -  -  173 — 177 
What  Communications  privileged — Where  Suit  Expected 
— Communications  collateral  to  the  Suit — Suit  closed — 
Attorney  changed           -               -               -           177 — 179 
Where  no  Suit  Expected— Sale  of  Estate         -  -    179 
Instructions  for  fraudulent  Deed         -               -            180,  181 
Form  of  Communication    -               -               -  -    181 
Production  of  Deeds — Rule  in  Prosecutions — Attorney  of 
two  Persons,  or  of  Stranger  to  Suit — Case  and  Opinion 
— Inspection  by  Court    -               -               -           181 — 186 
Communications  not  privileged — Collateral  Facts,  &c.     -    18G 

Sect.  IV.  The  Exclusion  of  Matter  of  Evidence, 
the  disclosure  of  which  would  be  preju- 
dicial to  Public  Interests. 

Principle  of  Exclusion        -                .  _  .  igg 

Communications  of  Spies,  of  Agents  of  Police,  and  Officer 

of  Government                -               -  -  189—192 

Official  Communications     -                -  -  -  192 

Member  of  Parliament — Grand  Juryman  -  -  193 

Private  Communications  to  Official  Persons  -  -  195 

Non-access          .               .               .  _  .  195 


CHAP.  XII. 

General  Rules   relating   to  the    Exclusion   of   Evi- 
dence       ------     196 

Sect.  I.     Original  and  Hearsay  Evidence     -  -     196 

Transactions  by  word  or  writing — Letters  to  Testator — 
False  denial  of  a  Bankrupt— Bankrupt's  Directions— Re- 
puted Ownership — Owner — Character — General  Opin- 
ion—Intention  of  Testator     -  -  -    197—200 
Expressions  of  Mental  Feelings             -               -  .    200 
Expressions  of  Bodily  Feelings — Relation  of  previous 

Symptoms — of  period  of  Conception  -        -    201 — 203 

Statement  of  cause  of  Injury— Complaint  in  Rape  -    203—204 
Declarations  accompanying  Possession  -  -    204 

Hearsay,  part  of  res  gestae        -  .  -    206 — 216 


CONTENTS.  xiii 

Page 
Sect.  IL     Of  the  Exclusion  of  Hearsay  Evidence        217 

Policy  of  the  Rule  -  -  -  -  217 

History  of  the  Rule  -  -  -  -  219 

Extent  of  the  Rule  -  -  -  -  220 

Declaration  of  Attesting  Witnesses  -  -  -  221 

CHAP.  xni. 

Exceptions  to  the  Rule  excluding  Hearsay  Evidence     222 

Sect,  I.     Relaxation  of  the  Rule  in  the  case  of  Pedi- 
gree       _  _  _  -  -     223 

Sect.  H.     Hearsay  Evidence  upon  Matters  of  Public 

or  General  Interest  .  -  -     250 

CHAP.  XIV. 

Hearsay  Evidence  of  Ancient  Possession. 

Ancient  Documents  evidence  of  Possession        -  '   285 

CHAP.  XV. 

Of  Dying  Declarations  -  -  -  -     29 

In  Civil  Cases     -  -  -  -  -    291 

In  Criminal  Cases  ....    294 

CHAP.  XVI. 
Declarations  and  Entries  by  Deceased  Persons        -     306 

Sect.  I.     Declarations  and  Entries  against  the  Inter- 
est of  the  Persons  making  them  -     307 

Sect.  II.     Declarations    and     Entries    made    in    the 

course  of  Duty  or  Employment  -     332 

Tradesman's  Books  -  .  .  .    337 

CHAP.  XVII. 

Other  Exceptions  to  the  Rule  which  excludes  Hear- 
say Evidence       -----     352 

Deceased  Witness  who  has  been  examined  on  Oath  353 


XIV  CONTENTS. 

CHAP.    XVIII. 

Page 
Admissions   and  Confessions  -  -  -     356 

Sect,  I     Admissions. 

How  far  whole  Admission  must  be  taken  together            -  357 

Admission  of  a  Fact  of  which  there  is  Written  Evidence  364 

Admissions  during  Treaty      -            -                -                -  365 

Voluntary  Admissions         .                .                -                -  367 

Indirect  Admissions            ....  368 

Implied  Admissions             ...                -  369 
Admissions  by  Demeanour,  by  Acquiescence,  by  Posses- 
sion of  Ancient  Documents,  by  Conduct        '           372 — 377 

Admission  of  Law               ....  377 

Effect  of  Admissions           ...                -  378 
Admissions  under  Oath,  by  Deed,  by  Writing  not  under 

Seal  ....  385—391 

Admissions  of  a  Party  to  the  Suit      ...  393 

Admissions  of  Persons  nominally  Parties           -                -  393 
Admissions  by  a  Party  in  Interest,  who  is  not  a  Party  on 

the  Record       -               -               -               -               -  394 

Admissions  by  a  Party  in  a  different  capacity    -               -  398 

Admissions  by  other  Party  to  the  Suit                -                -  398 

By  a  Partner,  Party,  and  not  Party  to  the  Suit   -                -  399 

Admissions  by  Party  to  Instrument    .                -                -  400 

Admissions  by  Agents        ....  401 

Implied  Autliority  to  admit                 ...  406 
Admissions  by  Wife — by  Guardians — by  Attornies — by 

Counsel — by  Principal  of  a  Surety                -            407 — 412 
Admissions  in  Criminal  Cases            ...  410 
Admissions  by  Privies  in  Interest,  in  Blood,  in  Law,  in  Es- 
tate                  -               -               -               -               -  412 
Admissions  by  Persons  under  whom  Parties  claim            -  413 

Sect.  II.     Confessions  .  -  -  .     419 


Whole  Confession  -  .  - 

Effect  of  Confession  ... 

Voluntary  Confession  ... 

Confession  on  Oatli  ... 

What  Inducements  make  a  Confession  inadmissible 
Knowledge  obtained  by  inadmissible  Confession 
Acts  done  in  consequence  of  inducement 
Confessions  not  evidence  against  others 
Confession  in  case  of  Treason 


420 
423 
423 
424 
425 
432 
433 
433 
435 


CONTENTS.  '  XV 

CHAP.  XIX. 

Page 
Exclusion  of  Secondary   Evidence  -  -     437 

Principle  of  the  Rule         ....  433 

Extent  of  the  Rule  .  -  -  -  439 

Quantity  of  Evidence  ....  44O 

Writing  the  subject  of  Dispute  ...  441 

Other  Cases — Contracts — Terms  of  Tenancy — Fact  of 
Tenancy — Collateral  Writing — Secondary  Written  Evi- 
dence— Matter  of  Record — Official  Memorandum — In- 
formal Examination — Fact  of  Marriage  -  442 — 448 

Writings  not  excluding  Oral  Testimony  -  -  449 

Resolutions  at  a  Meeting  -  -  .  450 — 452 

Exceptions  to    the    Rule — Records— Entries    in    Public 

Books— Written  Appointment  of  Public  Officer  -  452 

Voluminous  Facts  ....  454 

Notices  -  -  -  -  -  454 

Original  Evidence  not  available         ...  455 

CHAP.  XX. 

On  Presumptive  Evidence     -  -  .  -     456 

Sect.  I.     Presumptions  made  by  Courts  and  Juries       457 

Circumstantial  Evidence     -  -  -  .    457 

Presumptions  of  Law  -  -  .     459 

Particular  presumptions — Age — Legitimacy — Marriage — 
Intention — Malice — Innocence — on  publication  of  Li- 
bels— Thell  from  Possession — Contra  Spoliatorem    4G1 — 407 
Fabrication  of  Evidence     -  -  _  _    457 

Presumption  of  continuance  of  Life  -  -  -    468 

Survivorship — Missing  Ships — Public  Appointment  -    4G9 

Omnia  rite  acta  -  -  .  .    4G9 

From  course  of  public  and  private  Office  -  -    471 

Possession — Boundaries — Incorporeal  Rights — Public  Way 

— Faculties— Fences       -  -  .  472 — 474 

What  may  be  presumed — Act  of  Parliament— Surrender 
of  Terms — Writs — Grants   from  the    Crown — Private 
conveyance — Livery  of  Seisin— Licences— Bye-law  474 — 47S 
Presumptions  in  Treason    -  -  .  -    478 

Presumption  of  Payment    -  -  .  -     479 

Reputed  Ownership  -  -  .  .    479 

Acceptance  of  Benefit        -  -  .  .    480 


XVI 


CONTENTS. 


Presumptions  in  Equity  and  Ecclesiastical  Courts 


Other  Transactions  to  shew  knowledge 
Proof  of  Customs  in  other  Manors 
Acts  of  Ownership,  &,c.  in  other  Lands 
Evidence  of  Character 
Presumptions  in  Criminal  Cases 
Other  Acts  to  shew  Intention 
Subsequent  Facts 


480 


Sect.  II.     On  the  Relevancy  of  Presumptions  -     481. 


-  488 

-  483 

-  485 

-  488 

-  492 
494—499 

-  495 


PART    THE    SECOND 


OF    WRITTEN    EVIDENCE. 


CHAP.  I. 

Of  the  Admissibility  and  Effect  in  Evidence  of  Judi- 
cial Writings       -----     505 

Sect.  I.  Of  the  Admissibility  and  Effect  in  evidence 
of  Judgments,  and  Verdicts  in  the  Supe- 
rior Courts        -  -  -  -     506 

Verdict  upon  the  same  Matter  -  _  -  5i2 

Verdict  between  same  Parties  -  _  -  514 

Real  and  Nominal  Parties  .  _  .  515 

Verdicts  binding  on  privies  in  Blood,  Law,  or  Estate  -  517 

Verdicts  in  Criminal  Cases  -  -  -  520 

Sect.  II.     Admissibility   and    Effect   in   evidence  of 

Judgments  of  Inferior  Courts  -     525 

Sect.  III.     Proceedings  in  Foreign  Courts  -     533 

Sect.  IV.     Of  Sentences  in  the  Ecclesiastical  Courts   543 

Sect.  V.  Of  Judgments  of  Courts  of  Admiralty ; 
Judgments  in  rem  in  the  Exchequer  ; 
Judgments  by  Commissioners,  Visitors, 
Trustees,  Courts  Martial,  Arbitrators, 
Justices,  &c.   -  -  -  -     550 


TABLE 


THE  CASES  CITED 


A. 

Page 

Page 

Aickle's  case 

669 

Abbey  v.  Lill 

648.  901 

Alban  v.  Bitchell 

172 

Abbott  V.  Massie 

733 

V.  Pritchett 

407 

Abbot  V.  Plumbe 

365.  650 

Alcock  V.  Cook 

262 

.  289.  580 

Abigny  v.   Clifford 

8 

585 

593.  628 

Abigney  v.  Clifton 

608 

Alchorne  v.  Gomme 

383 

Abingdon's  case 

434 

Alderson  v.  Clay 

364.  375 

Able  V.  Potts 

598 

Aldred  V.  Halwell 

607 

Abrahams  v.  Bunn 

117.520,  521 

Aldridge  v.  Haines 

555 

Abraham  v.  Newton 

568 

Alexander  v.  Brown 

390 

Absolonv.  Beaumont 

836 

V.  Gibson 

402. 902 

Acceri  v.  Petroni 

688 

903, 904 

Acebel  v.  Levy 

771 

Alford's  case 

619 

Ackerley  v.  Parkinson 

555 

Algernon  Sydney's  case 

705,  706 

Ackland  v.  Pearce 

455.  671 

Alivon  V.  Furnival  624 

627 

. 662. 674 

Ackroyd  and  Warburton's  case  427 

Allan  V.  Tapp 

812 

Adams  v.  Arnold 

203 

Allen's  case 

439.615 

507 

Allen  V.  Dundas 

544 

141 
657.661 

Allesbrook  v.  Roach 
AUington  v.  Bearcroft 

697.  700 
87 

Adam  v.  Kerr 

Adams  v.  Lingard 

41 

Allison's  case 

447. 642 

873 

Allibone  v.  The  Att.  Gen. 

573 

T      IM-ill-in 

90 

Alivon  V.  Furnival 

449.  538 

389.479 

Allott  V.  Wilkinson 

415 

„     117 11 

756 

Allport  v.  Meek 

700 

Adamthwaite  v.  S^nge 

248. 269 

Almon's  case 

466 

615.  624 

Alner  v.  George 

384. 

388.  394 

Addington  v.  Clode 

807 

Alsop  V.  Bowtrell 

463.  608 

Adey  V.  Bridges 

358 

Altham,  Lord  v.  Lord  Atkinson  577 

Adey's  case 

17.3.  381 

Altham's  case 

712.  742 

Aflalo  V.  Fourdrinicr 

56,  57.  666 

Alton  V.  Farrcn 

155 

TABLE  OF  CASES  CITED. 


Page 
Alvez  V.  Bunbury  624 

Ambrose  v.  Cleiidon  209 

Amey  v.  Long  780.  786 

Amilie  Villeneiive,  case  of  123 
Amos  V.  Hughes  834 

Ancient  Britons,  trustees  of  v. 

Spurrier  395 

Anderson  v.  Pilcher  769 

: V.  Saunderson        172.  408 

V.  Sir  W.  Hamilton     193 

Anderton  v.  Magawley  628 

Andrews  v.  Dobson  731 

Andrew  V.  Pledger  623 

Anglesea  case  274 

Angus  V    Smith  927 

Ankerstcin  v.  Clark  859 

Annandalc,  Marchioness  of  v. 

Harris  387 

Annesley  V,  Lord  Anglesea  178.240 
244,  245.  458.  467 
Ansley  v.  Birch  800 

Anscomb  v.  Shore  74.  254.  264 

Anstey  v.  Dowsing  144.  151 

Anslay  v.  Donney  159 

Antram  v.  Chase  627 

Apothecaries'  Co,  v.  Bentley  465 
Apperley  v.  Gill  474 

Appleton  V.  Braybrook  624.  640 

Appleby's  case  423 

Appottun  V.  Dunswell  294 

Archangelo  v.  Thompson  604 

Archer  V.  Holligstyle  611 

Arding  v.  Flower  782,  783 

Armory  v.  Delamaire  467 

Armstrong  v.  Hewitt  322.  588.  644 
Arnfield  v.  Bate  855 

Arnold  v.  Bishop  of  Bath  and 

Wells  602 

.  V.  Revoult  858,  859 

Arnott  V.  Redfern  537,  538 

Arundel  V.  Arundel  574 

Ai'undle's  Lord,  case  322 

Arundell  v.  I^ord  Falmouth  261 

Arundel  v.  White  622 

Ashby  V.Power  414.513.518.588 
Ashby  V.  White  555 

Ashford  V.  Thornton  460 

Ashley  V.  Harrison  207 

Ashmore  v.  Hurdy  365.  386 

Ashton  V.  Songes  105.  125 

Ashton  V.  Poynter  555 

Aslinv.  Parker  512.516 

Aspinal  V.  Kempson  477 


Page 

Astley's  Sir  .J.,  case  480 

Atherfold  v.  Beard  807 

Athol  V.  Ashburnham  241 

,  Duke  of,  case  264 

Atkins  V.  Drake  315.  603.  645 

V.  Hatton  644 

V.Humphreys  571 

V.Meredith  666 

—  V.  Tredgold  393.  400 

Atkinson  v.  Carter  666 

V.  Pierrepoint  382 

V.  Warne  837 


Attorney  General  v.  Bowman        488 

■- ^v.  Bulpit  886 

V.  City  of  Co- 
ventry 810 

V.  Davison        568 

569 

V.  Foster  746 

V.  Good  198 

V.  Griffith  13 

V.  Grote  735 

— V.  King  552 

V.  Le  Marchant 

GG3. 780 

V.  Parker  and 

others  740 

-V,  Parnther       4G8 

V.  Randall         383 

V.  Theakestone 

592 

V.  Corporation 

of  Warwick  27.290 

Avery  v.  Dickinson  806 

Aveson  V.  Lord  Kinnaird       168.172 
202,203.207.  216.292 
Ayre's  case  170 

Ayrey  v.  Davenport  616 


B. 


Bacon  V.  Chesney  389.  402.  405.  411 
Backhouse  v.  Middleton  562 

Badcock's  case  22.  24 

Baggaley  V.  Jones  413 

Bagot,  Lord  v.  Williams       508.  509 
Bailey  v.  Bailey  81 

Bailiff,  &c..  of  Tewkesbury  v, 

Brickncli  857 

Bain  v.  Case  598 

Baillie's  case  175 

Baillie  v.  Hole  80.  156 

Baillie  V.  Wilson  117 


TABLE  OF  CASES  CITED. 


ixxiU 


Baikie  v.  Chandless 
Bain  V,  Mason 
Baker   v.  Davey 

• V.  Dewey 

■ V.  Morley 

V.  Sweet 

V.  Tyrwhitt 

Baker's  case 
Bakiev.  Chandless 
Baldney  v.  Ritchie 
Baldwin  v.  Dixon 
Balls  V.  Westwood 
Balutti  V.  Serani 
Bambridge's  case 
Bainfield  v.  Massey 
Banbury  Peerage  case  229 
248.269.  462 
Banks  V.  Colwell 
Barber  v.  Holmes 
Barclay's,  Lord,  case 
Barell  v.  Russell 
Barford  v.  Nelson 
Baring  v.  Roy 
Baring  v.  Clagett 
Barker  v.  Keate 

V.  Macrae 

V.  May 

V.Ray         308.314 

320.  329.  352. 
Barlow  V.  Bishop 
Barnes  v.  Mawson  254. 

Barony  of  Clifford 

Powis  case 

Barough  v.  Martin 
Barry  v.  Alexander 
V.  Bebbington      312. 

Barrett's  case 
Barstow's  case 
Barthon  v.  Loughman 
Bartleet  v.  Downes 
Bartlett  v.  Pickersgill 
Barton  v.  Boddington 
Barzillay  v.   Lewis 
Barlow  V.  Vowel 
Barnes  v.  Wenklar 
Barne  v.  Whitmore 
Barrett  v.  Wilson 
Barron  v.  Grillard 

V.  Humphreys 

Barrough  v.  White 
Barrymore,  Lord  v.  Taylor 


Page 

690 

595 

758 

387,  389 

172 

628 

86.  154 

949 

686 

664 

103 

381 

482 

297 

489 

.231.239 

.557.582 

416 

598 

484 

838 

390 

534 

533,  534 

470 

141 

408 

315.318 

335.  467 

408 

261.286 

583 

581 

895 

816,817 

326.  330 

441 

370 

435 

900 

477 

63,  521 

384 

534 

145, 146 

527,  528 

357 

526 

712.  398 

786 

392.416 

358,359 

363 


Basker  v.  Sir  W.  Dixie 
Bass  V.  Clive 
Bassett  V.  Dodgin 

V.  I^Iitchell 

Basten  v.  Carew 
Bate  V.  Hill 
V.  Russell 


Bateman  v.  Bailey 
V.  Phillips 


Bates  V.  Gratham 
Bateson  v.  Hartsink 
Bath  V,  Kinsey 

V.  Montague 

Earl  of  V.  Battersea 


Page 

162 

383,384 

105 

846 

555,  556 

489 

59 

209 

807.819,820 

821 

755 

186 

182.673.667 

28. 115 

357.571 

198 

173.381 


Batsford  v.  Alderson 
Batthews  v.  Galindo 
Bauerman  v.  Radenius  43,  392,  393 

394.  403 
Bayley  v.  Lloyd  153 

Baylie  v.  Wylie  629 

Baylisv.  The  Attorney  General   750 
Bayne  v.  Stone  444 

Baynham  v.  Guy's  Hospital  747 

Beale  v.  Bird 
Beamon  v.  Ellice 
Beard  v.  Ackernian 
Beasley  v.  Magrath 
Beauchamp  v.  Parry 
V.  Vassey 


817.  824 
886 
125 
409 
207 
416 

Beaumont  V.  Fell   715.  717.  725,72© 
727,  728,  729,  730,  731 


Beauvain  v.  Scott 
Beaver  v.  Lane 
Bebb  V.  Thomas 
Beckwith  v.  Bonner 

V.  Sydebothatn 


Becquet  v.  M'Carty 

Bedell's  case 

Beebee  v.  Parker 

Beeching  v.  Gov/er 

Bere  v.  Ward  205.  238.  241.  652.  701 


622 
859 
207 

137.  664 
901 

538, 539 
761 
271 

148. 885 


Berryman  v.  Wise 
Bell  v.  Ansley 

v.  Harwood 

v.  Smith 


Bellamy's  case 
Bembridge  v.  Osborn 
Bendshye  v,  Pearce 
Bongough  v.  Walker 
Benjamin  v.  Porteus 
Bonnet's  case 
Bennet  v.  Clough 


453 
394 
124 
84.  395 
622 
479 
442 
740 
140 
666 
465 


xxxiv 


TABLE  OF  CASES  CITED. 


Page 
Bennett  v.  Hundred  of  Hertford  8 
Bennet  v.  Watson  78G 

Benson  v.  Bennett  388 

V.  Marshall  415 

V.  Olive     414.  513.  518.  577 

Bent  V.  Baker    74,75.100.101.1151 

145.263; 
Bentley  v.  Cook  161 

Bentzing  v.  Scott  866  i 

Berkeley  case        225,  226.  229.  231 
244,  245.  248.  2.38.  206.  269.  272 
276,  277.  281.  944 
Bermon  v.  Woodbridge  363 

Bernard!  V.  Mottcau.\  532.535 

Bernasconi  v.  Farebrother    392.  397 

907 
Berner'.s  Peerage  229 

Berry  v.  Banner  263.  265.  518 

and  Goodman's  case         472 

Berryman  v.  Wise  371 

Berth  on  v.  Lough  man  899 

Bertie  v.  Beaumont       635.  638.  652 

V.  Falkland 

Berwick's  case 


Best  V.  Barlow 
Betham  v.  Bonson  Gow 
. V.  Benson 


740 
435 
595.  642 
402 


Betsworth  v.  Betsworth 
Bettison  v.  Bromley 
Bevan  v.  Jones 

V,  Waters 

q.  t.  V.  Williams 

Beveridge  v.  Minter 
Biddul[)h  V.  At  her 
Biden  v.  Loveday 
Biggs  V.  Lawrence 


405 

544 

119 

859 

187 

570 

168 

254.  263.  286 

478 

402.  758 

28 


Bilbou  and  others 

Bilton  V.  Corporation  of  Liverpool 

180 
Binns  V.  Tetley  81 

Birch  V.  Depeyster 
Bird  V.  Appleton 
Birkett's  case 

Birt   V.  Barlow  463.581, 
V.  Kershaw 


,  89 
759 
534 
54 
596 
107 
699 


Bishop  Atlerbury's  case 

of  Durham  v.  Beaumont  946 

Hereford  v.  Duke  of 

Bridge  water  810 

Meath  V.  Belfied  602 

V.  Mary  of  Win- 
chester 590 
Biss  V.  Mountain  103 


Page 
Black  V.  Holmes  193 

Blacky.  Lord  Braybrooke    613.  624 
Black's  case  434 

Blackeln  v.  Crofts  351 

Blackett  v.  Lowes  254,  256 

V.  Weir  124 

Blacket  v.  Royal  Exchange  As- 
surance Company  739.  743.  76& 
Blackham's  case  545.  547 
Blackwell  v.  Bull  733.  745 
Blaikeler  v.  Crofts  326 
Blake's  case  774 
Blake  V.  Foster  382,  383 
V.  Pilfield  194 


Blakemore  v.  Glamorganshire 

Canal  Company  519,  520,  521 

Blakey  v.  Porter  818 

Bland  V.  Ansley  95 

V.  Swaffham  786 

Bland  ford  v.  De  Tastet  786 

Blewett  V.  Tregonning  944 

Bligh  V.  Wellesley  681 

Blogg  V.  Kent  819 

Blount's  claim  240 

Blower  V.  Hollis  619,620 

Bloxam  V.  Elsee  364 

Biundeli  v.  Howard  487.  588 

Blunt  V   Blount  236 

V.  Clarke  471 

Blyth  V,  Barnpton  857 

Boardman  v.  Jackson  358 

Bodle's  case  578 

Boehtlinck  v.  Schneider  624 

V.  Inglis  625 

Bokenham  claim  234 

Bold  V    Rayner  73S.  743 
Bolton  V.  Corporation  of  Liverpool 

410 

■ —  V.  Gladstone        •  534 

Bond  V.  Seawell  470 

Bonham's,  Dr.,  case  555 

Booth  V.  Howard  876.  883 

— —  v.  Saunce  400 

V.  Wilson  474 

Bootle  V.  Blundell  735 

Borthwick  v.  Carruthers  881 

Bosanquet  v.  Anderson  383 

Boswell  v.  Smith  479. 

Bosworth  v.  Colcbett    329.  346.  348 

349 

Botham  v.  Swingler  150,  151 

Boltings  v.  Firby  529 

Bottomley  v.  Usborne  182 


TABLE  OF  CASES  CITED. 


XXXV 


Bottomley  v.  Wilson 
Boucher  v.  Lawson 
Bourne  v.  Turner 
Bousfield  V.  Gregory 
Bovvden  v.  Home 
V.  Waithman 


Page 

105 

535.  537 

78 

824,  825 

508,  509 

631 

Bowditch  V.  Mawley  858 

Bowles  V.  Johnson  785 

V.  Langworthy  365.  569.  650 

V.  Neale  838 

Bowman's  case  622,  623 

Bowman  v.  Maugelman  671 

V.  Norton  185 

V.  Rostron  387 

■ V.  Taylor  230.  387 

Bowsher  v.  Cally     ,  215 

Boxer  V.  Kobeth  66 

Boydell  V.  Drummond  751 

Boyle  V.  Boyle  521 

Braddick  v.  Thompson  555.  774 

Bradley  v.  Arthur  593 

V.  Ricards  902.  904 

Bradshaw  v.  Bennett  656    772 

Bradwin  v.  Harpur  714 

Brady's  case  622 

Brackenbury  v.  Brackenbury       761 
Braine  v.  Dew  251 

Braithwaite  v.  Coleman         109.  467 
-B  ram  wick  v.  Lucas  189 

Brand  v.  Ackerman  182 

Brandram  v.  Wharton  400 

Brandrcth's  case  210 

Brangam's  case  802 

Branwell  v.  Penneck  556 

Braughe  v.  Cradock  184 

Brayne  v.  Veale  405 

Brazenose  College  v.  Bp.  of 

Salisbury  590 

Brazier  v.  Bryant  555 

V.  Jones  627 

Brazier's  case  5.  8.  204 

Brecon  v.  Smith  877 

Breedon  v.  Gill  563.  567 

Bree  v.  Beck  3l2.  532.  588 

Breton  v.  Cope  598.  639.  650 

Bretton  v.   Prettiman  405 

Brett  V.  Boales      251.  255.  261.  278 

289,  290.  313.  590.  594.  605.  610 

161 

V.  Levett  397 

V.  Rigden  740 

Brewer  v.  Palmer  442 

Brewster  v,  Sewell  675 


Page 
Briant  v.  Eicke  866 

Brice  v.  Smith  47a 

Bridget  v.  Coyney  556 

Bridgman,  Sir  J.  v.  Jennings       262 

288.  415 
Briggs  V.  Crick  102,  103 

Bright  V.  Walker  473 

Brisco  V.  Lord  Egremont  690 

Briscoe  v.  Stevens  527 

Bristow  V.  Eastman  384.  388 

V.  Wright  853.  855 


British  Museum,  Trustees 

of  V.  Furnis 
Brittain  v.  Kinnaird 
Broad  v.  Pitt 

V.  Vertet 


474 
556 
177 
180 

Brocas  V.  Mayor  of  London         641 
Brock  V.  Kent  405 

Brodie  v.  St.  Paul  751 

Brogan's  case  630 

Bromage  v.  Prosser  464 

V.  Rice  700 

Bromley  v.  King  208.  397 

V.  Wallace  489 

Bromwich's  case  565.  570 

Brookbard  v.  Woodley  701 

Brook  V.  Carpenter  521 

V.  Willett  857 

Brooks  V.  Blanshard  866 

V.  Warwick  464 

Brooksby  v.  Watts  382 

Broomfield  v.  Jones  853 

Broughton  v.  Harper  163 

— V.  Randall  46» 

Brounker,  Lord  v.  Sir  R. 

Atkins  518.  605 

Brower  v.  Hay,  Lord,  widow  of,  292 
Brown  V.  Brown  51 

V.  Bullen  553 

V.  Capel  607 

V.  Corporation  of  London  155 

V.  Crashaw  21 

• V.  Davis  416 

V.  Dean  631 

V.  Fox  51 

V.  Gracey  627 

V.  Jacobs  85D 

V.  Knill  858 

V.  M'Kinally  525 

V.  Rose  ,  820.  824 

V.  Sayce  855 

V.  Shelley  241 

V.  Thornton  608.  624 


XXXVI 


TABLE  OF  CASES  CITED. 


Page 
Brown  V.  Woodman  44o.662.63 1.682 
Browne  v.  Gumming  805 

Browne  v.  INI  array  843 

's  case  619.574,575 

Browning  v.  Aylwin  820 

Brownsord  v.  Edwards  521 

Bruce  V.  Hurley  206 

Brudenell  v.  Roberts  382,  383 

Brune  v.  Rawlings  701,  702 

Brunton's  case  27 

Bryan  v.  Wagstaff  666 

V.  Winwood  486 

Brydges  v.  Duke  of  Chandos        754 
Buchanan  v.  Rucker  538,  539 

541.  623.  626 
Bucher  v.  Janet  444 

Buckland  v.  Tankard  127 

Bucklerd  v.  Millard  754.  758 

Buckley  v.  Smith  657 

Buckworth's  case  353 

Budd  V.  Randall  512 

Bulkeley  v.  Butler  622 

Bullen  V.  INIitcheli         253.  262,  312 
324.  586.  587.  602.  628.  633 
633.  644.  652.  685.  948 
Bunbury  case  324 

Bunting's  case  545 

Burdett  v.  Colman  212 

Burdon  v.  Browning  63,520 

Burgess  v.  Cuthill  109.  Ill 

Burghart  v.  Angerstein         409.  595 
Burleigh  v.  Stibbs         387.  456.  670 

^ V.  Stott  400,  401 

Burley  v.  Bethune  464 

Burioy's  case  427,  423 

Burnard  v.  Nerot  613.  620,  621 

Burnett  v.  Lynch  655 

Burnet  v.  Taylor  657 

Burr  V.  Harper     693.  695.  697,  698 
Burrell  v.  Nicholson  833 

Burridge's  case  22 

Burrough  v.  Martin  598 

Burrows  v.  Jemimo  541.  627 

Burt  V.  Barlow  447 

V.  Palmer  405 

V.  Walker  659 

Burton  V.  Hinde  48.  82.  93 

V.  Payne  664 

V.  Plummer       449.  893.  895 

897 
Busby  V.  Greenslade  102.  120 

Bush  V.  Railing  41.  131 

Busheil  v.  Barrett  17 


Bushwood  V.  Bond 

Bust  V.  Palmer 

Butcher  and  Aldworth's  case 

^  V.  Jarrat 

Butchers'  Company  v.  Jones 
Butclier's  case 
Butler  V.  Alnut 

V.  Cook 

V.  Carver 

V.  INIoore 


Butler's  case 
Byam  v.  Booth 
Byerley  v.  Windus 
Byne  v.  Moore 


Page 

857 

400 

612 

663 

150 

432 

471 

87 

149.  885.  937 

177 

669.  831 

561.  62a 

474 

860 


497 
458 

365.  650 
569 

795.  801 


V.  Bovil 
V.  Flower 


Cambridge  Tolls,  case  of 
Camden  v.  Anderson 
Cameron  v.  Lightfoot 
Campbell  v.  Noconlow 

V.  Richards 

■ V.  Twemlow 


Cannel  v.  Curtis 
Came  v.  Needle 
V.  Nicoll 


Caddy  v.  Barlow 
Cadogan  v.  Cadogan 
Call  V.  Dunning 
Callaghan's  case 
Calliard  v.  Vaughan 
Calvert  v.  Archbishop  of  Can- 
terbury _  326.  .334.  337 
534,  535 
668 
261.  289 
597 
386.  630 
175 
899,  900 
173 
453 
319 
205 

Carlile  v.  Eady  151 

Carlisle  v.  Trears  855 

Carpenters'  Company  v.  Hay- 
ward  2.  263 
Carpenter  v.  Thornton  55S 
Careless  v.  Careless  712 
Carrington  v.  Brown  198 
Carey  v.  Pitt                  693,  694.  696 

479 
383 
655,  656 
732 
618,  519 
357 
263 
154 
899 
836 
482 


V.  Gerrish 

Carrick  v.  Vicary 
Carr  v,  Burdis 

v.  Carr 

V.  Heaton 


Carr's  case 
Cart  V.  Hodgkin 
Carter  v.  Abbot 

■ —  V.  Boehm 

V.  Jones 

V.  Pryhe 


TABLE  OF  CASES  CITED. 


Page 
Carter  v.  Sherwood  416 

Cartridge  v.  Griffiths  858 

Cartwright'v.  Williams  1.'32 

Cary  v.  Adkins  172 

Casburn  v.  Reid  613.  630 

Case  of  Dameree  212 

Castlcton  V.  Turner    '  750 

Cates  V.  Hardacre  913 

q.  t.  V.  Winter  663.  665.  780 

Catlin  V.  Bell  758 

Cato  V.  Howard  898 

Cato  Street  Conspiracy  39 

Cator  V.  Stokes  631 

Catt  V.  Howard  359.  400 

Catteris  v.  Cowper  472 

Cavan  v.  Stewart  532.  539,  623 

Caxton's  Burial 
Cazenove  v.  Vaughan 


240.  601 

568.  574, 

575,  629 


Celier's  Case  18 

Chadwick  v.  Bunning  646 

Clialenor  v.  Bowyer  740 

Chambers  v.  Bernasconi  294 

314.  316,  319.  326.  328.  333 
335.  339.  343,  344.  376.  572 

V.  Chambers  458 

Chamier  v.  Cling  516 

Champion  v.  Atkinson  141.  484 

Champneys  v.  Peck      336.  338.  341 
Chancellor  v.     The  University 


of  Oxford,  case  of 
Chancy's  case 
Chandos  Peerage 

Chapman  v.  Beard 
V.  Cowlan 


229 


464 
17 
233.  236 
238.  641 
370,  470 
251.  262 
284.  604 


-  V.  Gardner 

-  V.  Graves 

-  V.  Poynton 

-  V.  Smith   250.  252.  314 


V.  Walton 

Charlesworth's  case 
Carlton  v.  Barrett 
Charnock's  case 
Charrington  v.  Milner 
Chaters  v.  Bell 
Chatlield  v.  Fryer 
Chaurand  V.  Angerstein 
Chcetham  v.  Hampson 
Chesmer  v.  iVoyes 
Chctwind  V.  INlarnell 
Cheyne  v.  Koops 


900. 


34 

785 

538 

899 

19 

497 

26.  31 

126 

383 

258,  2.59 

739.  901 

474 

607,  608 

818 

85.  153 


Page 

Child  v.  Chamberlain  59 

V.  Grace  .375 

Chippindale  v.  Thurston  400 

Cholmondeley  v.  Clinton  477,  563 

Chorley  v.  Bolcott  381 

Christian  v.  Coombe      339.  607,  925. 

Christie  v.  Greggs  481 

V,  Secretan  533,  534 

Chubb  V.  Westley  497 

Churchill  v.  Evans  474 

v.  Wilkins  855 

City  of  London  v.  Clark  25 1 .  263,  264 

Clargcs  V.  Sherwin  264 

Clarincard's  Lord,  case  594 

Clark  V.  Bedford  341 

V.  Clark                  178,  371,  379 

V.  Lucas  93 

Clarke  V.  Gannon  118 

V,  Gray  856 

V,  Hougham  401 

V.  SafFrey  899 

Clarkson  v.  Hanway  763 

v.  Woodhouse  262,  263 

285,  236,  287,  288.  290 

Clay  V.  Langslow  397 

Clayton  v.  Gregson  738.  743 

Cleeve  v.  Powell            184,  514,  523 

Clegg  V.  Levy  624.  626 

Cleghorn  v.  Desanges  631 

Clerk  V.  Bedford  343 

Clermont  v.  TuUidge  697 

Clewe's  case  435 

Clifford  v.  Burton  172.  408 

V,  Hunter  909 

Clifton  v.  Walmsley  747.  754 

Clinan  v.  Cooke  764 

Clinton  Peerage  case  237 

Clive  V.  Gwyn  615 

Clothier  v.  Chapman  256 

Clunnes  v.  Pezzy  467 
Clutterbuck  V.  Lord  Huntingtovver48 

Clymer  v.  Littler  293.  299 

Coates  V,  Bainbridge    402.  404,  405 

v.  Stevens  882,  883 

Cobden  v.  Henrick  178,  179 

Cochran  v,  Iletzberg  759 

Cockman  v.  Mather  605 

Cocks  V,  Nash  816,  821 

Cocksedge  v.  Fanshaw  950 

Cockshot  V.  Bennet  394 

Coe  v,  Westernam  543 

Coghlan  V.  Vvilliamson  657 

Cohen  v,  llannam  855 


XXXVI  n 


TABLE  OF  CASES  CITED. 


Cohen  v,  Hinkley 
V.  Templar 


Page 

469 
186 
353 


Coker  v.  Farewell 
Colchester,    Mayor,  Etc.    of, 

case  of  155 

Coles  V.  Trecothick  751 

Colledge  V.  Home  410 

Collenridge  v.  Farquarson  207 

Collett  V.  Lord  Keith   358,  359.  367 
Collier  V.  Hicks  465 

Colling  V.  Treweek       455,  456.  668 

670,  671 
Collins  V.  Blantern  758 

V.  Carnagie  872 

V.  Godefroy  785 

V.  Gresley  289.  602 

Ex.  V.  Wright  366 

Colonel  Gordon,  case  of  664 

Colsel  V.  Budd  479 

Colvel  V.  H.  M.  Procurator  Gen.  469 
Colvin  V.  Eraser  161.  480 

Commins  v.  The  Mayor  of  Oakhamp- 

ton  91 

Compagnon  v.  Martin  848 

Compton  V.  Chandless  632 

Comp.  of  Mersey  and  Irwell  Nav. 

V.  Douglas  864 

Conway  v.  Beazeley  536 

Coogan's  case  524 

Cook  V.  Green  473 

V.  Lo.xley  382 

V.  Nethercote  886 

V.  Rogers  208 

V.  Tanswell  682.  825 

Cook's  case  919 

Cooke  V.  Banks  258,  259.  327.  335 

600 

V.  Booth  747 

V.  Hearn  181.673 

V.  Lloyd  225 

V.  Maxwell  20.  193.  405.  622 

V.  Sholl  552 

Cooks  V.  Hellier  471 

Coombs  V.  Coether       251.  261.  639 

V.  Pitt  371.  384 

V.  Wheeler  602 

Cooper  V.  Amos  879 

V.  Gibbons  467.  663.  667 

V.  Marsden  339.  351 

V.  Meyer  388 

V.  Smith  363 

V.  Turner  479 

V.  Wakley  838 


Page 
873 
405 
594 
463.595 
563 
186 
619 
629 
151 
181 
159 
382 
489 


180, 
80. 


Cooper  V.  Whitehouse 
Coore  V.  Callaway 
Cope  V.  Bedford 
Cope  V.  Cope  171.  195.  246, 
Copeland  v.  Stanton 
Copeland  v.  Watts 
Coppard's  case 
Corbett  V.  Corbett 
Corking  v.  Jarrard 
Cormack  v.  Heathcote 
Cornish  v.  Pugh 

V.  Searall 

Cornwall  v.  Richardson 
Corporation  of  Barnstaple  v.  La- 
they  811,  812 

London  v.  Long  395 

Sutton  Coldfield  v.  Wilson  48 

Corsen  v.  Duboits  186 

Cory  V.  Bretton  366 

Cosham  v.  Goldnay  124 

Cossens  v.  Cossens  387 

Cost  V.  Birbeck  263 

Coster  V.  Reed  440 

Cotes  V.  Davis  408 

CotteriU  V.  Cuff  857 

V.  Hotby  443 

Cottington's  case  536 
Cotton  V.  James  197.  604.  837.  839 
Counden  v.  Clark  712.  742 
Countess  of  Rutland's  case  754 
Courteen  v.  Touse 
Cousins  V.  Brown 
v.  Padden 


405. 


Cowling  V.  Ely 
Cowper  V.  Covvper 
Cox  V.  Allingham 

V.  Coleridge 

V.  Copping 

Cozer  V.  Pilling 
Cragg  V.  Norfolk 
Craib  v.  D'Aeth 
Craig  V.  Cundell 
Cranburn's  case 
Cray  v.  Halls 
Craythorne  v.  Swinburne 
Crease  v.  Barret  242.  251 
267.  271.  308.  319,  320, 
Creevey  v.  Bowman 
v.  Carr 


891 
860 
880 
408 
467 
646 


809 
464 
387 
392 
113 
923 
358.  362 
762 


259. 
353 


Crepps  v.  Durden 
Crerar  v.  Sodo 
Cresby,  Sir  P.,  case  of 
Crew,  q.  t.  V.  Blackburn 


261 
413 
113 
909 
55Q 
844 
28 
807 


TABLE  OF  CASES  CITED. 


XXXlX 


Crew  q.  t.  v.  Saunders 
Crisp  V.  Anderson 
Crisj)in  v.  Williamson 
Crilclilow  V.  Parry 
Croft  V.  Pawlet 
Crotton  V.  Poole 
Croke  V.  Dowling 
Crooke  v.  Edwards 
Crosby  v.  Percy 

's  case 

Cross  V.  Fox 

V.  Kaye 

V.  Salter 

Crossfield,  Trial  of 
Crouch  V.  Drury 
Crowley  v.  Page 
Crowther  v.  Hopwood 
Cuddington  v.  Wilkins 
Cuilen  V.  Morris 
Cundell  v.  Pratt 
Cunliffe  V.  Sefton 
Currey  v.  Walter 
Currie  v.  Child 
Curtis  V.  Perry 

V.  Wheeler 

Curzon  V.  Lemon 

V.  Lomax 

Cuthel's  case 
Cutler  V.  Newling 
Cuts  V.  Pickering 
Cutter  V.  Powel 

D. 

Da  Costa  v.  Jones 

V.  Pym 

V.  Villa  Real 

Dacres  v.  Morgan 
Dagleish  v.  Dodd 
Dale  V.  Johnson 
Dalgleish  v.  Hodgson 
Dalisen  v.  Stark 
Dalrymple  v.  Dalrymple 
Dalston  V.  Coulsworth 
Ddlzel  V.  INIair 
Damaree's  case 
Dance  v.  Robson 
Daniell  V.  Phillipps 

V.  Pitt 

Daniels  v.  Potter 
Dartmouth,  Countess  of  v. 
erts  357.  3G0.  386. 

Dartnell  v.  Howard 
2 


Page 

800.  811 

467.  883 

857.  860 

383 

470 

37] 

613.620.630 

90 

659 

Ql      OO     OQ 

-~^>  ^^,  *J 

88 

370 

545 

419,436 

351 

442. 927 

18 

21 

555 

922 

365.660,661 

175 

57.59.657 

761 

839 

272 

261 

466 

411 

178 

768 


251 


195 
697 
544 
284 
358 
161 
535 

444.  450 
625 
467 

384.388 
213 

613. 632 
556 
405 

215.399 

Rob- 

414.  476 
621 


Davenport  v  Davies 
Davies  v.  Brown 

■ V.  Davies 

V.  Edwards 

V.  Lewis 

V.  Loundes 

V.  Pearce316.  325. 

Davis  and  Carter's  case 
V.  Capper 


v.  Dale 
V.  Dinwoody 
V.  Humphreys 
V.  Morgan 


48.92 
252. 


V.  Nest 

V.  Reynolds 

V.  Ridge 

V.  Williams 

Dawson  V.  Macdonald 
Day  V.  Bower 

V.  Davies 

V.  Trigg 

V.  W^illiams 


713. 


Deacle  v.  Hancock 
Deacon's  case 
Deade  v.  Hancock 
Deady  v.  Harrison 
Dean  and  Chapter  of  Ely  v. 
decoft 


art 


I' en 
De  Berenger's  case        192. 
De  Bertram  v.  Smith 
De  Gaminde  v.  Pigou 
Delatield  v.  Freeman 
De  la  Motte,  case  of      669. 

Delany  v.  Tenison 

De  Lisle  Peerage  case  232, 

Demise  of  Radford 
Denn  v.   Fulford 

v.  Page 

v.  Spray         250.261. 

V.  White 

Dennison  v.  Elsley 
Derby's,  Lord,  case 
Derosne  v.  Fairlie 

De  Rutzen  v.  Farr 

De  Sailly  v.  Morgan 

De  Symonds  v.  De  la  Cour 


Page 

877 

805 

119 

878 

254.  256 

557 

413.415 

19 

556 

908 

159.394 

810 

248.  251 

269.  330 

521 

444 

393 

647 

824 

877 

879 

723.  730 

477 

314 

493 

284 

417 

Cal- 

313.376 

Stew- 

652 
War- 

484 

456.914 

381 

388 

90.  623 

692.699 

709.  923 

467 

238,239 

583 

713 

613 

721 

270.  604 

407.516 

288 

523 

121 

330 

925 

100.  121 


?I 


TABLE  OF  CASES  CITED. 


Page 

Dcspard'scase  26.33.39 

Devenage  V. -Bouverie  819 

Devon,  Earldom  of  233 
Devonshire,  Duke  of  v.  Lodge  757 
De  Whelpdale  v.  Milburn     386.  519 

Devvhersl's  case  447.  56G 

Dicas  v.  Lawson  786 
Dickenson  v.  Coward     369.  371.  381 

V.  Shee  911 

V.  Valpy  381 

Dicken  V.  Lodge  3l6 

Dickinson  v.  Prentice  125 

Dickson  v.  Evans  829.  465 

Digby  V.  Sieadraan  338.  351 

V.  Steel  364 

Dike  V.  Polhill  230.  547 

Dillon  v.  Harris  752 

V.  Parker  948 

Dingler's  case  297 

D'Israeli  v.  Towel  698 

Ditcham  v.  Bond  478 

Ditchburn  v.  Goldsmith  195 

Ditcher  v.  Kendrick  185 

Dixon's  case  464 

Dixon  V.  Atkins  681 

V.  Cooper  140 

V.  Dixon  468 

V.  Haigh  662 

V.  Hammond  384 

V.  Purse  87 

Dobson  V.  Waterman 
Doddington  v.  Hudson 
Doddington's  case 
Dodd's  case 


Doe   V.  Benson 

V.  Bingham  7 

V.  Bluck 

V.  Bowerman  v.   Sybourn 


714 
120 
714 
466 

Dodd  V.  Norris  438,  489.  914 

Doe  d.  Aldane  and  Ll^rry  v.  Har- 
vey 672 

V.  Allen  374 

d.  Ash  V.  Calvert  547 

• d.  Ashforth  v.  Bower    714.  744 

V.  Askew  604 

d.  Baggaley  v.  Jones  317 

d.  Baker  v.  Wombwell         373 

d.  Bank  of  England  v. 

Chambers  652 

d.  Banning  v.  Griffin  243 

V.  Barnard  645 

V.  Barnes  246 

d.  Barrett  V.  Kemp  486 

. d.  Bath  V.  Clarke  121 

d.  Beach  v.  The  Earl  of 

Jersey  732 
d.  Beard  v.  Parell               660 


Page 
755 

3.444 
615 
391 
557 
595 
373 
382 
717 
374 
646 


Bray 
Briggs 

Bristow  V.  Pegge 
Brown  V.  Greening 
Cadwallader 
Calvert 
Chandler  v.  Ford  758.  760 
Chevalier  V.  Huthwaite  714 
Clarges  v.  Foster  373 

Clarke  472 

Cockell  13a 

Cole  681 

Cooke  475 

Corbett  V.  Corbett  839 

Courtail  V.  Thomas  186 

Coyle  v.  Cole  413.  455 

Curtis  V.  Spitty  665 

Deakin 

Digby  v.  Steel 
Dodsbury  v.  Thomas 
Dring 
Durnford 
Dyeball 

East  London  Water 
Works  Company 
Errington 
Evans  367. 

Eyre  v.  Lambley 
P'enwick  v.  Reed 
Fleming 
Ford 
Forster 
Foster  v.  Earl  of  Derby  354 
519.571 
V.  Sisson  250.  271.483 


242 
386 
256 
735 
455 
472 


405 
873 
577.658 
384 
476 
463 
761 
373 


Futler  V.  Randall     228.  239 
243.  248 
George  v.  Jesson  468 

Gore  v.  Langton       714.  732 
740 
Gray  666 

Green  54.61.317 

Griffin  468 

Griffin  V.  Mason  490 

Guillim  v.  Guillim  740 

H addon  554 

Hales  374 

Hall  63^ 


TABLE  OF  CASES  CITED. 


xU 


Page 
Doe  d.  Hall  v.  Benson  751 

d.  Hammond  v.  Cook  477 

d.  Handson  v.  Fyldes  735 

d.  Hanson  v.  Smith  640 

V.  Harcourt  589 

V.  Hardy  753 

V.  Harris  180 

V.  Harvey  443.  512.  516 

d.  Hawthorn  v.  Mee  640 

d.  Hayter  v.  Joinville  734 

V.  Henning  656 

d.  Hendson  v.  Kersey  144 

d.  Higgs  V.  Cockell  667 

V.  Hilder  477 

d.  Hindson  v.  Kersey  151 

V.  Hodgson  370 

V.  Hollom  732 

V.  Huddart  512.516.840 

d.  Human  v.  Pettett  412 

V.  Hurt  476 

d.  Jackson  v.  Ramsbottom  383 

d.  Jan»es  v.   Brawn  453 

V.  Johnson  472.  658 

d.  Johnson  v,  Pembroke      229 

230 

V.  Jones  325.  412 

d.  Jupp  V.  Andrews  186 

d.  Knight  V.  IVepean  468 

V.  Laken  262.  283 

d.  Leicester  v.  Biggs  373 

d.  Lewees  v.  Preece 

V,  Lewis 

V.  Lloyd 

d.  Lloyd  V.  Deakin 

V.  Passinffham 


Lord  George  Thynne 
JNIaddock  v.  Lyne 
IVIaisey 

Manton  v.  Austin 
V.  Thrupp 


516 
470 
595 
468 
353 
331 
701 
92 
382 
413 
d.  Marriott  v.  Edwards  383.87 1 

V.  Martin  665.  740 

V.  Mason  27 1 .  474.  647 

V.  Miles  364 

d.  Morgan  v.  Morgan  742.  742 

743 

d.  Morris  V.  Roe  819.821 

• V.  Rosser        406.512 

ooo 

V.  INIorris  673 

V.  Needs  741 

d.  Ncpean  v.  Budden  382 

V.  Newton      699.  700.  701.  703 


Page 
Doe   d.  Northey  v.  Harvey  243 

V.  Ormcrord  646 

d.  Oldham  v.  Wolley   463.651 

652 

V.  Oxendon  717.724.727 

d.  Pattershall  v.  Turford      335 

336.339.341.471 

V.  Payne  205 

d.  Pearson  v.  Ries  690 

V.  Perkins      449.  893.  895,  896 

d.  Perry  v.  Newton  700 

d.  Peter  v.  Watkins      180.  184 

185 

d.  Peters  v.  Hopkinson        755 

V.  Pettett        205.316.  325.413 

d.  Phillips  V.  Morris  662 

V.  Pike  472 

V.  Plowman  477 

d.  Poole  V.  Errington  875 

d.  Powel  V.  Hill  326 

V.  Preece  78 

■  d.  Preedy  v.  Hottom  744 

d.  Priestly  v.  Callaway  640 

d.  Pring  v.  Pearsay  473 

d.  Pritchard  v.  Dodd    230.  336 

V.  Rutland  477 

V.  Pye  374 

V.  Randall  243 

d.  Reed  v.  Harris  200 

V.  Reed  476 

V.  Richarly  205 

V.  Rickerby  413 

V.  Ridgway  218.  294 

V.  Roberts  761.  763 

d.  Roberts  v.  Roberts  760 

V.  Robson      313.  325.  329.  332 

V.  Scott  476 

V,  Seaton  288 

d.  Sewell  V.   Parrott  740 

d.  Shellard  v.  Harris      181.  180 

d.  Smith  V.  Cartwright  315.601 

and  others  v.  Gal- 
loway 714,  715 

V.   Smart  841 

Smythe  382 

Spicer  V.  Lea  754 

Spicer  755 

Spilsbury  v.  Burdett  651.653 
Stacey  "  332 

Stansbury  v.  Arkwright  601 
Staple  476 

Slroder  v.  Seaton      184.  41.5 
517.  601 


xlii 


TABLE  OF  CASES  CITED. 


Page 

Doe  V.  Suckermore        693.  695,  696 

697,   698,  699,  700,  701,  702,  703 

704.  706 

d.  Sutton  V.  Ridgeway  242.  246 

292 
d.  Sweetland  v.  Webber       205 

417 

V.  Sybourn  476 

d.  Sykes  v.  Durnford  649 

V.  Tarver  701,702 

V.  Teague  92.  120 

d.  Temjdemanv.  Martin      731 

736 

V.Thomas  185.476.712 

d.  Tilman  v.  Tarver  283 

d.  Tollett  V.  Salter  863 

V.  Tooth  48.396 

V.  Turtbrd      307.  334.  338.  340 

345 
V.  Tyler  74.  77.  91,  92.  312.  322 

519 

d.  Tyrrell  v.  Lyfford  748 

V.  Vowles  308.  314.  333 

V.  Wainwright  656.  681 

d.  Walker  v.  Stephenson     946 

V.  Wallinger  693 

d.  Warren  v.  Bray       447.  840 

d.  Watney  v.  Grey        672,  673 

.. V.  Watson  364.  383.  734 

V.Webber  319.519 

. d.  Weld  V.  Ormerod  250 

d.  Westlake  v.  Westlake     712 

d.  Wetherall  v.  Bord  410 

v.  Whitcomb  516 

v.  Wilde  78 

. d.  Wilkins  v.  Lord  Cleve- 
land 376.  478.  654 

.-s d.  W^ilkins  v.  Wilkins  656 

V.  Williams     78.  205.  316.  325 

V.  Wilson  478 

d.  WoUaston  v.  Barnes  594.840 

d.  Wood  v.  Morris        443,  444 

, V.  Wright  497 

Doker  v.  Hasler  168 

Donaldson  v.  Thompson  535 

Doncaster  v.  Day  632.  568 

Donellan,  defence  of  459 

Donington's  case  426 

Donnison  v.  Elsley        252,  253.  256 

262 
Door  V.  Geary  7  14 

Dormer  v.  Fortescue  55.  61 

Dorset,  Lord  v.  Carter  396 


Page 

Douglas  V.  Forrest  539 

Peerage  case  274.  458.  467 

669 

V.  Scougal  461 

Dover  V.  Mcstacr  442.441 

Dowden  v.  Fowle  380.  394.  396 

Dowdeswell  v.  iSott  48.  82 

Downc'scase  857 

Downes  v.  Moreman  639 

V.  Skrymsher  612 

Dowsett  V.  Sweet  712.  727.  7.34 

Dowton  V.  Cross  397 

Drake  v.  Marryat  402.  607 

V.  Smith  322.  588.  603.  644 

V.  Sykes  396.407.631 

Draycott  v.  Draycott  595 

Drayton  v.  Dale  383 

Drew  V.  Durnborough  481 

Drewry  v.  Twiss  864 

Drinkwater  v.  Porter  265 

Druce  v.  Davison  714 

Drummond's  case  282.295,296 

Du  Barre  v.  Livetti  175,  176,  177 

Du  Bo.st  V.  Berestord  200 

Ducket  V.  Williams  568 

Dutbeld  V.  Oriel  589 

V.   Orrel  314 

Duffin  V.  Smith  180.  187 

Duins  V.  Donovan  ''')95 

Duke  v.  Alridge  334.395 

V.  Povvnall  153 

Duncan  v.  Hill  876 

V.  Scott  333.  631,  632 

Dundas  v.  Lord  Weymouth  858 

Dunn's  case  497 

Dunn  V,  Murray  508,  509.  555 

V.  Slee  411 

V.  White  172 

Dupay  V.  Shepherd  592 

Durrell  v.  Bederley  899 

Durstan  v.  Tuthan  855 

Dutton  V.  Colt  10.  574 

Dyer  v.  Bowley  383 

Dyke  v.  Aldridge  396 

Dyson  V.  Wood  623 


E. 

Eagleton  V.  Coventry    691.697, 

V.  Kinuston 


Eardley  v.  Turnock 
Earl  V.  Baxter 
Earl  V.  Lewis 


699 
693 
858 

475 
600.  603.  635 


TABLE  OF  CASES  CITED. 


xliii 


Earlc  V.  Picken 
East  V.  Chapman 
Easton  V.  Pritchett 
Eaton  V.  Lyon 
Eccles  V.  Hill 
Eccleston  v.  Petty 
V.  Spoke 


Page 
364.  39.3 
913 
834 
747 
61.5 
230,231.408 
23 


Eden,  Sir  John  v.  Earl  of  Bute  736 

Edgar  V.  Blake  444 

Edge  V.  Salisbury  734 

Edie  V.  East  Jndia  Company  739 
Edmonds  v.  Lowe           105.  127.  141 

V.  Rowe 

V.  Walter 


Edmonstone  v.  Plaisted 
Edmunds  v.  Groves 
Edmunstone  v.  Webb 
Edward's  case 
Edwards  v.   Crook 

V.  Lucas 

V.  Rees 

V.  Ronald 

V.  Vesey 

Egerton's  case 
Egg  V.  Barnet 
Egglestone  v.  Speke 
Eike  V.  Nokes 


11 
891 
631 
831 
456 
431 
201 
859 
312 
542 
806 

493.  496 
479 
408 

187.  390 


Ekins  V.  Dormer 
Elden  V.  Keddell 
Eldridge  v.  Knott 
Eliza  Ann,  case  of 
Elliot  V.  Elliot 
Ellis's  case 
Ellis  V.  Hardy 

V.  Soltan 

•  V.  Watson 


314 
647 
475 
592 
480 
493 
200 
175 
385.  400.  597,  593 
771 


Elmore  v.  Kingscote 
Elsam  V.  Faucett  201.  489 

Elton  V.  Larkins  410.  938 

Elwes  V.  Elwes  458 

Ely,  Bishop  of  V.  Bentley  554 

V.  Stewart  640 

Embden's  case  621 

Emerson   v.  Blonden  172.  407 

V.  Boswell  480 

Emmett  v.  Butler  57.  59 

England,  Bank  of  v.  Anderson    746 
England  d.  Syburn  v.  Slade  333 

Entiisv.  Donnisthorne  .3.54 

Entick  V.  Carrington  662 

Ernest  v.  Brown  831,  882,  883,  884 
Erskiiie  v.  Ruffle  433 

Es.scx,  Earl  of,  Trial  of  434 


Evans  V.  Bcattie  402. 

V.  Bicknel 

V.  Birch 

V.  Butt 

V.  Evans 

V.  Getting 

V.  Lake  335. 

V.  Morgan 

V.  Phillips 

V.  Sweet 

. V.  Tripp 

V.  Williams 

■ V.  Yeatherd 

Sir  S.  case 

Everth  V.  Hannam 
Everett  v.  Lowdham 
Ewens  V.  Gold 
Ewer  V.  Ambrose  360.  620 

V.  Preston 


Exon  V.  Russell 
Exparte  Aitkin 

Burl 

Campbell 

Church 

Coles 

Holyland 

Hooper 

James 

Learmouth 

Lyne 

Malkin 

Osborne 

Partridge 

Roscoe 

Taylor 

Tillotson 

Yeatman 

Youna 


Eyre  v.  Palgrave 

F. 

Fabrigas  v.  Mostyn 
Fachina  v.  Sabine 
Fairfax's  case 
Fairlie  v.  Denton 
V.  Hastings 


197. 

402, 

Fairmainer  v.  Budd 
Faith  V.  Mclntyre  111,112.  8.35. 

v.  Pearson 

Falconer  v.  Hanson   358.561. 
Falmouth,  Lord  v.  George 
Fancourt  v.  Bull 


Page 

405.  411 
476 
479 
486 

457, 453 
606 

338.  397 

247. 447 
803 
664 
714 
123 
85 
345 
634 
884 
87,88 

. 902. 907 
925 
397 
855 
180 
87 
569 
607 
569 
468 
754 
159 
632 
783 
90 
90 
824 
785 
596 
783 
180 
56 
639 


405 
10 
750 
374 
403 
389 
844 
532 
578 
263 
126 


xliv 


TABLE  OF  CASES  CITED. 


Page 
Farquano  v.  Knight  175 
Fan  ant's  case  566 
Fanington's  case  464 
Fassett  V.  Brown  660 
Faulder  v.  Silk  and  another,  ex- 
ecutors of". Jervoice  534 
Fawcett  V.  Fowlis  556 
Fearsliire's  case  506 
Feaubert  v.  Turst  627 
Fellows  V.  Williamson  206 
Fenn  v.  Granger  158.  396 

V.  Harrison  405 

d.  Thomas  v.  Griffith    442,  443 

Fenner  v.  Duplock  388 

Fenton'scase  631 

Fentum  v.  Fococke  757 

Fenwick  V.  Reed  175 

V.  Thornton  398 

Sir  J.,  case  of  171.194 

Fermor  v.  Lordino  588 

V.  Phillips  631 

Ferras  v.  Arden  609 
Ferrar  v.  Oven  627 
Ferrers  v.  Shirley  391.  557.  706 
Field  V.  Beaumont  780 
V.  Curtis  88 

V.  Mitchell  97 

Fielder  v.  Ray  443 

Filliter  v.  Minchin  695 

Filmer  v.  Gott  758 

Finch  V.  Messing  312.  324 

Finden  v.  Westlake  198.  377 

Fisher  v.  Boucher  199 

V.  Graves  286 

V.  Hemming  182 

V.  Lane  527.  622 

V.  Ogle  534,  535 

V.  Wainwright  879,  880 

Fitzgerald  v.  Elsee  660 

V.  Eustace  387 

V.  Fauconberg  470 

Fitzjames  v.  Moys  8 

Fladowen,  case  of  535 

Fleming  v.  Fleming  247 

V.    Gooding  382 

V.   Simpson  264 

Fleming's  case  567 

Fletcher  v.  Braddyll  604.  648 

V.  Froggat  353.  363 

V.  Greenwell  49 

Fletcher's  case  435 

Flindt  V.  Atkins  623 

Flower  v.  Herbert  88.  379 


Flower  V.  Young 
Folkard  v.  Hemet 
Folkes  V.  Chad 
FoUiott  V.  Ogdea 
Fonnereau  v.  Poyntz 
Fonsick  V.  Agar 
Foote  V.  Hayne 
Forbes  v.  Hale 
Ford  V.  Grey 
Forester  v.  Pigou 
Fort  V.  Clarke 
Forty  V.  Imber 
Foster  v.  Blakelock 

V.  Compton 

V.  Jolly 

V.  Steel 


Page 

597 

807 

901 

536 

735 

578 

175.405 

651,652 

587.  574 

84. 146,  147 

230.  387,388 

848 

389 

618 

756, 757 

461 

435.  447 


Foster's  case 
Fotheringham  v.  Greenwood  91.  122 

123 
Foulkes  V.  Gellway 
Fountain  v.  Young 
Fowler  V.  Coster 
Fox  V.  Clifton 

V.  Jones 

V.  Lushinston 


199 
175 

833.  838 
381 

805.815 
101 
665 
631 


France  v.  Lucy 

Frances  v,  Neave 

Francia's  case  435.  437.  669.692.  709 

Frankhmd  v.  M'Gusty  539 

Franklin's  case  691 

P'rankum  v.  Earl  of  Falmouth      873 


Fraser  v.  Marsh 
Free  v.  Hawkins 
Freeman  v.  Arkell 

V.  Baker 

V.  Phillips 


153 
756 
676 
598 
261.  264.269 
276.  279,  280.  284 
Freeman's  case  378 

Fremoult  v.  Dedire  627 

French  v.  Backhouse  107 

Friedlander  v.  The  London  As- 
surance Company  902,  903 
Friend,  Sir  J.,  case  of  783.  914.  944 
Frith  v.  Gray  864 
Frogmorton  v.  Scott  383 
Frogwell  v.  Lewelyn  366 
Frontine  v.  Frost  830 
Froswell  V.  Welsh  471 
Fry  v.  Wood  651,652 
Fuller  V.  Cotch                                5oG 

V.  Fetch  653.  639 

V.  Lane  474 

V.  Prentice  785 


TABLE  OF  CASES  CITED. 


xlv 


Page 

Fulwood's  case  169 

Furley  dem.  Mayor  of  Canterbu- 
ry V.  Wood  754 

V.  Nevvnham  784.795 

Furneaiix  v.  Hutchings         483.  485 
Furness  v.  Cope  351 

Fyson  V.  Kemp  615 


G. 

Gabay  v,    Lloyd 

Gahan  v.  Mainjay 

Gainsford  v.  Grammar  178.  188. 

Galbraith  v.  Neville      526.  537. 
Gale  V.  Halfknight 

V.  Lindo 

V.  Packington 

Galen,  case  of  the 
Ganer  v.  Lady  Lanesbor  '    627. 
Garden  v.  Creswell 
Gardiner  v.  Crasdale 

Peerage  case    202,  203. 

239.  341.  462.  463.  582.  642, 
V.  Tadis 


Garland  v.  Scoones 
Garnem  v.  Barnard 
Garnet  v.  Ball 
Garnet's  case 
Garnett  v.  Ferraud 
Garnons  v.  Bernard 
V.  Swift 


405, 


691, 


Garrels  v.  Alexander 
Garrett  v.  Lister 
Garrick  v.  Williams 
Garth  V.  Howard 
Gartside  v.  Ratcliffe 
Gas  Company  v.  Clark 
Gaunt  V.  Wainman 
Geery  v.  Hopkins 
Genden  v.  Robson 
George  v.  Surrey 

V.  Thompson 

Gervis    v.  Grand    Western   Ca 


614. 
401.  403. 


514. 


739 
526 
405 
409 
540 
203 
760 
313 
123 
624 
786 
847 
231 
643 
488 
618 
316 
406 
420 
555 
258 
683 
692 
647 
686 
405 
467 
814 
759 
806 
381 
692 
665 


nal  Company 
Gcvers  V.  Mainwaring 
Geyer  v.  Aguillar 
Gibbons  v.  Phillips 
Gibbon  V.  Featherstonehaugh 
Gibson  V.  Coggon  364, 

V.  Hunter  949, 

V.  INLiccarty 

V.  \\ inter 

Gigner  v.  Bayly 


387 
97.  741 
551 
63! 
479 
396 
950 
522 
.394 
814 


Page 
Gilchrist's  case  524 

Giles  V.  Smith  120,  681 

Gilham's  case  177.  426 

Gill  V.  Shelley  744 

Gillicr  V.  Smithier  682 

Gillingham  v.  Laing  198 

Gimbert  v.  Coyney  55& 

Gladstone  v.  Neale  857 

Glanville  v.  Payne  470 

Glazier  v.   Glazier  480 

Glendow  v.  Atkin  244.  329.  332,  333 

346.  349 

Glossop  V.  Poole  584,  585 

Glynn  v.  Bank  of  England  290 

325.  338.  344,  345,  346.  348.  350 

V.  Thorp  506 

Goater  v.  Nunnely  819 

Goblet  V.  Beachey        730,  731,  739 

740 

714 

511,  512.  763 

61& 

59a 

657 

509 

380 

409 

806 

95 

22.  824 

85.  154 

848 

150 

740 

733 


87 


Godbolt's  case 

Goddard's  case 

Godefroy  v.  Tay 

Godfrey  v.  Macanley 

V.  Norris 

Godson  V.  Smith 

Goldie  V.  Gunston 

V.  Shuttleworth 

Golding  V.  Fenn 

V.  Nias 

Goldschmidt  v.  Marryat 

Goodacre  v.  Bream 

Goodes  V.  Wheatley 

Goodhay  v.  Hendry 

Goodinge  v.  Goodinge 

Goodman  v.  Edwards 

Goodmanchester,      Bailiffs     of, 
V.  Phillips  473 

Goodright  d.  Farr  v.  Hicks  488 

V.    Moss    169.    195.  225.  229 

233.  241.  272.  231 

V.  Saul  237.  463 

Goodtitle  V.  Baldwin  478 

V.  B  rah  am  901 

d.  Bremridge  v.  Walter    803 

V.  Duke  of  Chandos  326 

d.  Pinsent  v.  Lammiman  863 

d.  Rivett  V.  Braham  696.  841 

V.  Southern       713.  723.  730 

V.  Wilford  117,  119.  144 

782 
855 
858 
654 


Goodwin  V.  West 
Gordon  v.  Austin 

V.  Gordon 

V.  Secrctan 


xlvi 


TABLE  OF  CASES  CITED. 


Page 
Gordon's  case  500.  784.  851 

Gorham  v.  Thompson  593 

Gorton  V.  Dyson  646.  669 

Gosling  V.  liirine  384 

Goss  V.  Lord  Nugent  771.  775 

776,  777 

V.  Tracey  119.  657 

V.  Watlington        311.  314.  411 

412.  600 
Gough  V.  Cecil  661 

Gould  V.  Barnes  381 

V.  Jones  701 

Governor  of  Chelsea   Water 

Works  V.  Cowper  652 

Gracewood  v.  819 

Grafton,  Duchess  of,  v.  Holt        947 
Graham  v.  Dyster  668 

V.    Hope  593 

.    V.    JMaxwell  532 

V.    Peat  472 

V.    Furlong  90.  119 

Sir  R.,  Trial  of  802 

Grant  v.  Gould  555 

V.  Jackson  386.  399 

Graul    V.  Jackson  400 

Gravenor  v.  Woodhouse  382 

Graves  v    Key  379.  389 

Gray  v.  Bond 

V.  Cookson  556 

v.  Palmer  401 

Gray's  case  867 

Greathead  v.  Bromley  525 

Greaves  v.  Ashlin  770 

v.    Hunter  697 

Green     v.    Brown  469 

V.   Clark  878 

V.   Dunn  358,  363 

V.   Gatuik  553 

V.   Greenbank  856 

V.   Hewit  584 

V.  Jones  90 

V.   Proude  587.  628 

V.   Rennet  859 

V.  Ronde  617 

V.  The    New    River 

Company  96.  99,  100.  507 

Greenhough  v.  Gaskell  180 

Greenway  v.  Hindley  364 

Gregory  v.  Doidge  382 

V.   Howard  366,  367 

V.   Parker  172  508 

V.   Tavernor  939 

Greg's  case  435 


Grigg's  case 


Page 

Grellier  v.  Neale  660 

Grcnville  v.  Barwell  555 

Grey  v.  Smith  360 

Griffin,  Sir  John,  claim  of  232 

Griffith  V.  Davies  188 

Griffith  V.  Matthews  474 

v.  Williams  409.  699,  700 
161.  170 

Grimes  v.  Smith  470 

Grimwood  v.  Barrit  860 

Groenvelt  v.  Burwell  803.  806.  815 

Groom  v.  Thomas  468 

Groome  v.  Forrester  5.56 

Grose  v.  West  472,  473 

Grove  V.  Rutten  199 

Groves    V.     Western  Canal 

Company  380 
Guest  v.  Caumont  864 
V.  Elwes  874 


Guiness  v.  Carroll         526.  537.  542 
Guiseppe  Sacchi,  case  of  940 

Gully  V.   The  Bishop  of  Exeter      96 
386.  417.  675 
Gunnis  v.  Erhart  772 

Gunston  V.  Downes  28.  115 

Gurney  v.  Langlands  696 

Gutch's  case  466 

Guthrie  v.  Crossley  208 

Guy  V.  West  473 

Gwilliam  v.  Hardy  612 

Gwillim  V.  Gwillim  710 

Gwinnett  v.  Phillips  853.  860 

Gyfford  v.  Woodgate  631 

Gyles  V.  Hill  615 


H. 

Habershaw  v.  Treby 
Haddovv  V.  Parry 
Hadley  v.  Green 
Hagedorn  v.  Reed  336. 
Hailey's  case 
Haire  v.  Wilson 
Halden  v.  Glasscock 
Hall  V.  Cazenove 

V.  Curzon 

V.  Hall 

V.  Hoddesdon 

V.  Rex 

V.  Stone 

V    Wilcox 

Hall's  case 
Halliday  v.  Ward 
Hallelt  V.  Mears 


175 
316 

509 
338.471.682 
621 
464 
627 
763 
124 
172 
563 
85 
508 
757 
435 
401 
785 


427, 


TABLE  OF  CASES  CITED. 


xlvii 


Page 
Hamer  v.  Raymond 
Hamilton  v.  Dutch  East  India 

Company  532 

Hammerton  v.  Hammerton  458 


Hammond  v.  Howell 

V.  Stewart 

Hamond  v.  


555 
782 
575 

714.  718 
576 
473 

870,  871 


Hampshire  v.  Pierce 
Hamsoa's  case 
Hamson  v.  Parker 
Hanbury  v.  Ella 
Hancock  v.  Welsh  395.  512.  514.  516 
Handlbrd  v.  Palmer  857 
Hands  V.  James  470 
Hankey  v.  Wilson  383 
Hanson's  case  500 
Hanson  y.  Parker  394 
Hanter  v.  Rice  406 
Hardcastle  v.  Sclater  628 
Harding  v.  Carter  405 
V.  Cobley  109 

V.  Crethern  390 

V.  Greening  466 

V.  Jones  367 

Hardwicke  v.  Blanchard  104 
Hardy's  case    189.  211.  212.  214.  434 

479.  502.  503.  892.  914.  922 


Hardy  v.  Lee 
Hare  v.  JVIunn 
Hargest  v.  Fothergill 
Hariey's  case 
Harman  v.  Davis 

■ V.  Fisher 

V.  Lasbrey 

. V.  Tappenden 

• V.  Thompson 

V.  Vanhattan 

Harper  v.  Brooke 

. V.  Charlesworth 

Harratt  v.  Wise 
Harrington  v.  Caswell 

V.  Fry 

Harris  v.  Aldrit 

V.  Cooke 

V.  Hill 

V.  Mantle 

V.  Ti|)pctt 

V.  White 


85. 


895 
833 
665 
590 
380 
203 
105 
555 
835 
365 
312 
474 
593 
109 
694 
821 
863 
186 
847 
910.  922 
21 
56  G 


Harris's  case 

Harrison  v.  Blades  314,315.35  J .  658 

■ V.  Gould  837 

V.  Vallana  395 

V.  and  Wife  v.  Moore      365 

3 


Harrison  v.  Williams 

V.  Wood 

Harrison's  case      419.  565, 

Harrop  v.  Bradshaw 
Harrow  v.  Rislip 
Harscot's  case 
Hart  V.  Horn 

V.  M'Namara 

V.  Newman 


Hartley  v.  Cook 
Harvey  v.  Clayton 

V.  Grabham 

V.  Key 

V.  Morjran 


771 


Harvey's  case 
Harwood  v.  Goodright 

V.  Keys 

V.  Sims      250.  253. 


Hary's  case 
Hasker's,  Dr.  case 
Haslam's  case 
Hatch  V.  Blisset 
Hatfitdd  V.  Hatfield 

v.  Thorp 

Hathaway  v.  Barron 
Hathaway 's  case 
Havelock  v.  Cook 

V.  Rockwood 

Hav/es  V.  Watson 
Hawkes  v.  Salter 
Hawkins  v.   Finlayson 

V.  Howard 

V.  Inwood 

V.  Hare 


63. 


Haynes  v.  Hare 

V.  Holliday 

Hayslep  v.  Gymer 
Haywood  v.  Firmin 
Hazard  y.  Treadwell 
Head  V.  Head 
Headlam  v.  Hedley 
Heamc's  case 
Hearn  v.  Rogers 
Heath  y.  Hall 
Hebden  v.  Freeman 
Ilelliard  v.  Jennings 
Helyar  v.  Hawke 
Fleming  v.  English 
Hemming  v.   Parry 
Hemrnings  v.  Jlobinson 
Henderson  v.  Wild 
Hendy's  case 


216. 


380. 


Page 
811 
878 

570.  923 
944 
618 
529 
257 
95.  395 
552 
385 
600 
176 

776,  777 
364 
665 
545 
467 

396,  397 

283,  284 
439 
465 
29 
783 
545 
159 

520.  522 
200 
371 
535 
384 
472 
97 
186 
80 
444 
754 
738 

373,  374 
272 

402.  405 

107.  463 
472 
435 
589 
119 
602 
92 

402.  403 
155 
871 
383 
400 
912 


385. 
90. 


xlviii 


TABLE  OF  CASES  CITED. 


Henry  v.  Adcy 

V.  Leigh 

Henley  v.  Soper 
Heninun  v.  Dickinson 
Hennel  v.,  l^yon 
Hcnshaw  v.  Pieasance 
Hensey 's  case 
Herbert  v.  Ashburner 

V.  Cooke 

V.  Reid 

V.  Tucknal 

■ V.  Walters 

V.  Wilcocks 


Page 

623 

698.  663 

542.  556 

165 

620,  62 1 

553 

709 

806 

527,  537 

740 

oOq   229 

951 

208 

Heme  v.  Rogers  378 

Hervey  v.  Hervey  236.  247 

Hetherington  v.  Kemp  472 

Heudebourck  v.  Langston  137 

Hevey's  case  434 

Hevvard  v.  Shipley  42 

Hewitt  V.  Piggott  360.  375.  823 

Hewson  v.  Erown  612 

Heydon's  case  737 

Hick  V.  Keats  479 

Higginson  v.  Clowes  772 

Higgs  V.  Dixon  649 

Higham  v.  Ridgway      244.  308,  309 
312.  .325,  .326.  329.  333 
Highfield  v.  Peake       561.  578.  6 13 
614.  620.  629 
Hildyard  v.  Smith  817 

Hilldyard  v.  Grantham  345 

Hill  V.Aland  817 

V.  Bateman  556 

V.  Elliot  175.  366 

■ V.  Fleming  60 

V.  Hill  407 

V.  Manchester  W.  W.  290.376 

V.  Salt  867 

V.  Saunders  383 

V.  Sheritr  of  Middlesex         63 1 

V.  Squire  369 

V.  Street  873 

Hill's  case  849 

Hilliard,  case  of  522 

Hilly ards  v.  Phaly  231.  546 

Hirst's  case  447 

Hitchin  v.  Campbell  509.  5 15 

Hoadley  v.  M'Lane  77  I 

Hoar  V.  Mill  858 

Hoare  v.  Allen  206 

. V.  Coryton  397 

V    (iraham  756 

Hobhouse  v.  Hamilton         690.  614 


Hobson  V.  Blackburn 
V.  Parker 


Hobson's  case 
Hockin  V.  Cooke 
Hockley  v.  Lamb 
Hodgts  V.  Atkis 

V.  Fillis 

V.  Holder 

V.   Horsfall 

Hodgkinson  v.  Fletcher 

V.  Willis 


Page 
733 
807 
630 
855 
74.  263 
812.  815 
855 
339.  837 
751 
159    168 
172 
621 
Hodgsdon  V.  Fullarton  375 

^  V.  Hodgsdon  716 

Hodgson's  case  494,  495.  914 

Hodnet  V.  Forman  657 

Hodson  V.  Marshall  110 

V.  Sharpe  382 

Hoe  V.  Nathorp  547.  646 

Hoffman  v.  Pitt  88 

Hogg  V.  Snaith  756 

Holcombe  v.  Hewson  482 

Holcroit  V.  Smith  688 

Holden  V.  Hartsink  479 

Holder  V.  Coates  473 

Holding  V.  Pigott  764.  766 

Holdipp  V.   Otway  833 

Holland  V.  Hopkins  877 


V.  Reeves  .358.  456.  671.  940 

Hollis  V.  Goldfinch  374.  486 

Hollo\\vay  v.  Rakes  316.  325 

Holme  V.  Green  400.  401 

Holt  V.  Squire  409 

Holway  v.  Clarke  480 

Honeyer  v.  Lushington  535 

Honeywood  v.  Peacock  657 

Hood  V.  Reeve  405 

Hooper  v.  Hooper  510 

Hopewell  V.  Depenna  468 

Hopins  V.  Neal  43.  107 

Horford  v.  Morris  627 

Home  V.  Lord  T.  Bentick  193 

V.  Smith  780 


Home  Tooke's  case      189.  211.  .376 
479.  501.  616.  694 
Horsfall  V.  Testar  8.58 

Horton  v.  Horton  735 

Houghton  v.  Ewbank  405 

Honliston  v.  Smith  201 

Houseman  v.  Roberts  665,  666 

Houstman  v.  Thornton  469 

Hovill  V.  Stephenson  147.  658 

How  V.  Hall  444.  668 


TABLE  OF  CASES  CITED- 


xlix 


Howard  v.  Booth 

V.  Canfieltl 

V.  Shipley 

V.  Tremaine 

V.  Tucker 


Howatth's  case 
Howell  V.  Lock 

V.  Richards 

■ ■  V.  Stephenson 


Tho 


mas 


Howdenpyl  v.  Vingerhood 

Howleston  v.  Smith 

Hubbard  v.  Johnstone 

Hudson  V.  Revelt 

V.  Robinson 

Huet  V.  Le  JNIesurier 

Hughes  V.  Cornelius 

V.  Gordon 

V.  Watson, 

Hughes'  case 

Hulke  V.  Pickering 

Hull  V.  Vaughan 

Hulse  V.  Eyston 

Humble  V.  Hunt 

Hume  V.  Rundoll 

Humphrey  v.  Knight 

V.  Miller 

V.  Morgan 

Humphreys  v.  Boyle 

Hum  V.  Andrews 

V.  Hart 

V.  Massey 

Hunter  v.  Britts 

V.  Gibbons  and  Johnson  482 

65 

140 

229.  236.  240 

383.  594 

187 

880 

855 

524.  536 

764,  765,  766 

528 

527 

59 


Page 
881 
893 
131 

574.  575 
384 
425 
835 

858, 859 
657 
872 
400 
622 
597 
115 
124 
596 
532 
764 
607 
438 
479 
382 
602 
602 

547.  646 
586 
107 
125 

169.  172 
598 

722.  750 
481 
516 


Ingleby  v.  Smith 
Inglis  V.  Spence 
Ingrum  v.  Dade 

V.  Lee 

Inman  v.  Whormhy 
Lei  and  v.  Powel 
Irving  V.  Greenwood 
V.  JMotley 


Isack  V.  Clarke 
Israel  v.  Benjamin 

V.  Clark 

Ivat  V.  Finch 
Ives's  case 
Ivey  V.  Young 


Page 
387 

369.  371 
87.  150 

444. 772 
474 
259 
207 
402 
478 
652 
481 
315.  325.  413 

507.  606 
872 


Jackson  v.  Allen  667. 

V.  Fairbank400,  401.  837 

V.  Hesketh 


V  ivmg 

V  Leathley 

Huntingdon  Peerage 

Hurd  V.  Maring 
Hurst  V.  Mathius 
Hutchinson   v.  Piper 
Hutchinson's  case 
Hutton  V.  Warren 
Huxhatn  v.  Smett 

V.  Smith 

Huxley  V.  Berg 


48.  107. 


373,  374. 


442. 


I. 

Iggulden  V.  May  747 

Ilderton  v.  Atkinson  107 

Iles's  case  .324.  603,  604.  619 

lllingworth  v.  Leigh  628 

Incledon  v.  Burgess  510 


Jacob's  case 

Jacob  V.  Lindsay    353.  450,  895. 

Jacobs  V.  Humphrey 

Jajiffer,  case  of 

Ja<>-<iers  v.  Bmnmgs 

James  v.  Bun 

V.  Hatfield 

V.  Salter 

James's  case 
Jameson  v.   Earner 
Janson  v.  Wilson 
Janak  v.  Leonard 
Jayer  v.  Garnett 
Jayne  v.  Price 
Jee  V.  Hockley 
Jeffrey  v.  Walton 
Jeffries  v.  Duncome 
Jelfv.  Oriel 
Jelfs  V.  Ballard 
Jenk's  case 
Jenkins  v.  Harvey 

V.  Treloar 

Jenkinson  v.  Pepys 
Jennings  v.  Gritliths 
Jenys  v.  Fawler 
Jervis  v.  White 

Jervois  v.  Duke  of  Northumber- 
land 547. 
Jessel  V.  Chillingcn  816. 
John's  case  170. 
Johnson  v.  Baker  118. 

V.  Browning 

v.  Durand  175.  525,526. 

v.  Gilson 


869. 


682 
839 
835 
643 
898 
407 
170 
400 
369 
408 
839 
620 
198 
569 
397 
208 
472 
588 
772 
864 
866 
830 
855 
461 
870 
772 
154 
383 
620 

646 
818 
304 
171 
143 
555 
358 


I 


TABLE  OF  CASES  CITED. 


Page 
Johnson  v.  Lawson239.  241,  242.  246 

V.  Mars  85.5 

V.  Mason  95.  405 

V.  Ward  386.  405.  598 

Mr  Justice,  case  of  675 

699 
Johnston  v.  Parker  225.  229 

V.  Warton  480 

Johnstone's  case  854 

Jolley  V.  Taylor  444.  668 

Jones  d.  Bever's  case  524 

V.  Bow  545,  546 

V.  Brewer  658.794 


V.  Brooke 
V.  Carrinirton 


V.  Cowley 

V.  Diinthorpe 

V.  Edward 

V.  Jones 

V.  IVIason 

V.  Newman 

V.  Palmer 

V.  Perry 

V.  Pritchard 

V.  Radford 

V.  Randall 

V.  Reynolds 

V.  Stevens 

V.  Stroud 

V.  Thompson 

V.  Tucker 

V.  Waller     324.  331.  523.  635 

638 

V.  Williams  334.  486 

V.  Wood  631 

Jones's  case  422.  447.  566 
Jordaine  v.  Lashbrooke  3.  26.  40,  41 
Jourdaine  v.  Lefevre  161 
Jupp  V.  Grayson  526 


41.  104.  106.  Ill 

125 

263.  314.  331 

413 

855.  864 

563 

665 

557 

17.  19.  657 

712 

819 

199 

154 

383 

591.  618.  620 

510 

489.  598 

449.  897 

200 

735 


K. 


Kahl  V.  Jan  son 
V.  Johnson 


404 
402 
755 


Kaines  v.  Knightly 

Kay  V.  Brookman  622.  659.  661 

Keane's  case  545 

Keech  v.  Hall  383 

Keeling  v.  Ball  682 

Keene  v.  Dearden  476 

Keightley  v.  Birch  98 

Kelham  Bridge,  case  of               251 


Kell  V.  Rainhy 
Keliington  v.  Trin.  Col. 
Kelly  V.  Powlet 
V.  Small 


Page 

381 

585.  628 

732 

172 

Keman  v.  SherifT  of  London         185 
Kemble  v.  Farren  394 

Kemp  V.  Mackrill  696 

Kempland  v.  Macauley  407 

Kempton  v.  Cross  646,  647 

Kene  v.  Beaumont  671 

Kennett  v.  Greenwoblers  88 

Kensington  v.  Inglis    675.  683.  893 
Kent  V.  Loden  207.  417 

Kenworthy  v.  Scholefield  751 

Kenyon  v.  Wakes  881,  882 

Ker  V.  Shedden  598 

Kerrison  v.  Coatsworth  101 

Kerslake  v.  Shepherd  407 

Kerwan  v.  Cockburn  592 

Key  V.  Shaw  198.  374 

Kidney  v.  Cockburn  225.  233 

Kieran  v.  Johnson  481 

Killmorey's  case  231.  642 

Kindersley  v.   Chase  532,  533 

Kinder  v.  Williams  783 

Kine  V.  Beaumont  454 

King  V.  Antrobus  813 

V.  Baker  95 

V.  Bellamy  861 

V.  Ely,  Bishop  of  880 

■  V.  Eriswell  257 

V.   Francis  489 

V.  Eraser  863 

V.  Hunt  669 

V.  King  819 

V.  Lookup  860 

V.  Parnell,  Dr.  813 


Kingston's,  Duchess  of,  case       512 
513.  515.  529,  530.  544.  546.    548 
549,  550.  558.  568.  607 
Kingston,  Mayor  of  v.  Horner    475 
Kingworth  v.  Leigh  519 

Kinnersley  v.  Orpe  515.  614 

V.  Pope  593 

Kinsman  v.  Crooke  577 

Kirkwood's  case  494,  495 

Kirtland  v.  Pounsett  863 

Kitchen  v.  Manwaring  8 

Knapp  V.  Harden  773 

Knight  V.  Dauter  617 

V.  Martin  654.  656 

KnoUy's  case  590 

Knox  V.  Walley  381 


TABLE  OF  CASES  CITED. 


li 


Page 
Kostu  V.  Innesg  469 

Kynaston    v.    The    East    India 
Company  812 

L. 

Lacon  v.  Higgins  80.  626.  838 

V.  Hooper  598 

Lacy  V.  Forrester  834 

Lady  Dartmouth  v.  Roberts         620 

Lavviey's  case  171 

Laing  V.  Barclay  186 

Lainson  v.  Tremere  387 

Lake  V.  Howe  379 

V.  Skinner  314 

Lambert  v.  Oakes  383 

V.   Pack  383 

Lambe's  case  419.  447.  566.  578 
Lambrith  v.  RofT  878 

Lamey  v.    Bishop  866 

Lampet's  case  154 

Lampon  v.  Cooke  387,  388,389.  758 
Lancum  v.  Lovell  74.  139.  263.  290 
Lane  v.  Cowper  712 

V.  Earl  of  Stanhope     738.  740 

V.  Hegberg  553 

Langdon  v.  Hulls  671 

Langhorn  v.  Allnut  402.404 

Langhorne's  case  31 

Langley  v.  Earl  of  Oxford  410 

Larbalestier  v.  Clark  106 

Latham  v.   Rutley  855 

Lakow  V.    Earner   and  Barnett, 

Sheriff  of  Middlesex  584 

Lautor  V.  Teesdale  643 

Lawrence  v.  Deacon  695 

V.  Dodwell  740 

V.  Hodgson  627 

V.  Hooker  820 

Lawson  V.  Sherwood  467.  667 

Laycock's  case  621 

Layers's  case  26.  193.  447.  566.  669 

695.  706.  709.  783.  920.  923,  924 
Leach  v.  Buchanan  383 

Leader  v.  Barry  247.  596.  642 

Leathes  v.  Nevvell  259.  286 

Le  Caux  v.  Eden  532.  551 

Ledbetter  v.  Salt  380.  631 

Lee,V/.  t.  Birrel  177.  193 

V.  Boothby  640 

V.  Gansell  20 

V.  Lee  351 

V.  Mcecock  596.  616 

Lees  V.  Marston  210 


Lees  V.   Smelt 

Leeds  v.  Cook 

Leeds  Mill  case 

Leery  v.  Goodson 

Lee's  case 

Leeson  v.  Holt 

Le  Farrant  v.  Spencer 

Lefebvre  v.  Warden 

Legatt  V.  Tollervey 

Legh  V.  Legh 

Le  Gros  v.  Lavemore 


Page 

156 

670.  780 

261.  284 

855 

27 

593 

732 

338.  343.  345 

803 

394 

323 


Leigh  Peerage  case     229.  234.  248 

Leighton  v.  Leigliton 

Like  V.  Howe 

Le  Marchant,  case  of 

Lemon  v.  Dean 

Leonard  v.  Franklin 

Lepiot  V.  Brown 

Le  Sage  v.  Johnson 

Leslie  V.  De  la  Torre 

Lester  v.  Jenkins 

Lethbridge  v.  Winter 

Lethulier's  case 

Levett  V.  Wilson 

Levy  V.  Essex 

V.  Pope 


187. 


Lewis  V.  Baker 

V.  Hartley 

V.  Peake 

V.  Rogers 


Sapio 
Wells 
Ballard 


439.  445. 


Levy  V. 

Leyfield's  case 
Liebman  v.  Pooley 
Lightfoot  V.  Cameron 
Lincoln,  Bishop  of,  v.  Ellis 
Lincoln's  case 
T>indo  V.  Belisario 
Lingard  v.  Messiter 
Lipscombe  v.  Holmes 


50& 
371 

664 
660 
602 
712 
125 
755 
631 
474 
738.  768,  769 
476 
127 
393 
809 
667 
102 
207 
692 
837 
66a 
817 
682 
782 
519^ 
610 
627 

48a 

381 


836 


Lisle  Peerage  case 

Lister,  q.  t.  v.  Priestley 
Littler  V.  Holland 
Lloyd  V.  Passingham 

V.  SandiJands 

V.  Willan 

V.  Williams 

V.  Woodall 


Locke  y.  Norbonne, 
Lockhart's  case 
Lolly's  case 


230.  235.  237 

292.  582 

37a 

855 

595 

479 

405,  406 

60 

593.  608 

412.  517 

432 

536 


lii 


TABLE  OF  CASES  CITED. 


Long's  case 

V.  Champion 

Lopez  V.  Andrews 

V.  De  Tastet 

Lord  AiuUcy's  case 
• lialnierino's  case 

Castlemaine's  case        21. 

Cheney's  case 

Chohiiondely  v.  Lord  Clin 


Page 
428 
360 
475 
856 
170 
862 

.  923 
712 


ton 
Cochrane's  Trial 
Cromwell's  case 
Falmouth  v.  George 

V.  JMoss 


747 
816 
709 
211 
213 
910 


749 
922 
761 
74.  77 
177 

Ferrers  V  Shirley  693,  694.  707 

. George  Gordon's  case  212,  213 

Halifax's  case  228 

Imham  v.  Child  754 

Kilmarnock's  case  862 

Lonsdovvne's  case  746 

Lorton  v.  Gore  338 

Lovat's  case  21.  149.  884 

Melville's  case     633.  676.  684 

914 

Petre  v.  Blencowe 

Portmore  v.  Goring 

Preston's  case  706, 

Ptussell's  Trial  176 

Southampton,  Trial  of 

Stafford,  Trial  of 

Thanet  v.  Patterson   619,  620 

Valentia's  case  225 

•  Vane's  case  170 

Vv^alpole  V.  Lord  Cholmon- 

deley  718 

Warwick's  case  21 

V.  Wardle  761 

Lothian  v.  Henderson  533 

Louisa  Demont,  case  of  929 

Lovat  Peerage  233 

Lovedon  v.  Lovedon  458 

Loveridge  v.  Botham  390 

Lowe  V.  Lord  Huntingtower  722.  733 

V.  Jolifib  42.  902 

Lowry  V.  Doubleday  785 

Lowther  v.  Lord  Radnor  556 

V.  Raw  and  others  484 

Loyd  V.  Freshfield  176 

Lucas  and  others  v.  De  la  Cour  399 

V.  Novosilieski  479 

Luckett  V.  Graham  124 

Lumley  v.  Quarle  555 

Luttrel  V.  Lea  612 


Luttrel  V.  Reyuell 
Lygon  V.  Strutt 
Lynch  V.  Clark 

M. 

Macarthy  v.  Smith 
Macbridc  v.  Macbride 
MacdoAvgal  v.  Young 
Mace  V.  Cadcll 
V.  Kay 


Page 
577.9  4 
633,  634.  638 
357.  683 


Macferson  v.  Thoytes 
JNIackally's  case 
M'Guire's  case 
Macnally's  case 
Macpherson  v.  Thoytes 
Maddison  v.  Nuttall     323. 

V.  Shore 


Maesters  v.  Abraham 
JMainwaring  v.  Giles 

V.  Myttom 


Male  V.  Roberts 
Maloney  v.  Bartley 
Maloney  v.  Gibbons 
Maltby  v.   Christie 
Man  V.  Cary 

Manby  v.  Curtis  331.  351 
V.  Lodoe 


Manchester  Mills  case 
Manifold  v.  Pennington 
Mann  v.  Baker 

V.  Godbold 

V.  Long 

V.  Owen 


Manners,  q.  t.  v.  Postau 
Manning  v.  Clement 
V.  Lechmere 


Mantstephen  v.  Brooke 
Mant  V.  Manwaring 
Manton  v.  Downes 
Maragora's  case 
March  V.  Collnett 
Marchmont's  case 
Markham  v.  Middleton 
JMarks  v.  Lahee 
Marriage  v.  Lawrence 

321.  525. 
Marsden  v.  Stanfield50.  94 
Marsh  V.  Colleat 

V.  Meager 

V.  Robinson 


Marshall  v.  Clifi" 
v.  Parker 


877 
921 
617 

173.  381 
627 
698 

850,  851 
438 
622 
383 

414.  603 
645 
782 
403 
474 
127 
627 
914 
539 

369.  379 

639 

,  635.  652 

314 

263.  265 
858 
593 
681 

389.  481 
555 
650 
328 

312.  314 

401.  855 

51 

674 

464 

653 

231.  642 
508 

327,  333 

289,  290 

604,  605 

. 136.  138 

639 

210.  397 
597 

369.  409 
584 


TABLE  OF  CASES  CITED. 


liii 


Page 
Marshalsea  case  655 

Marston  v.  Downes  185 

Martin  v.  Bell  631.  G64 

V.  Howell  141 

V.   Nicholls  537 

V.  Thornton  175 

Mary  JMead's  case  171 

]\Iasli  V.  Denham  871 

V.  Smith  53 

Mason  Y:  Mason  469 
IMassey  v.  Johnson  556.  883 
Masterman  v.  Judson  866 
Masters  v.  Drayton  87.  117 
V.  Masters                   731.  740 

V.  Pollie  473 

Matthews  v.  Haydon  141 

V.  Port  583 

V.  Smith  87.  153 

Maugham  v.  Hubbard  450.  894 

Maunderra  v.  Reeves  401 

Mawman  v.  Gillett  121 

Mawson  V.  Hartsink  925 

May  V.  Gwynne  814 

V.  May  225.  447.  596 

Maybank  v.  Brooks  740 

Mayler  v.  Eyloe  209 

Mayor  of  Carlisle  V.  Blamire       387 

670 

Doncaster  v.  Day  353 

Exeter  v.  Coleman        812 

London  v.  Joliffe  396 

V.  Mayor  of 

Lynn  605 

V.  Swinland    806 

•  T^ynn  v.  Denton  812 

Southampton  V.  Graves  812 

INPBraine  v.  Fortune  142 

M'Carthy  v.  De  Cuix  536 

M'Craw  V.  Gentry  660 

M'Gahey  v.  Alston       412.  453.  469 

674.  681 
M'Intyre  v.  Layard  561 

MTver  v.  Humble  •     55 

IVPKenire  v.  Eraser  652 

M'Neil  v.  London  (Sheriff)  615 

M'Queen  v.  Farquhar  470 

M'Quillin  v.  Cox  848 

Mead  v.  Robinson  42.  131.  598.  639 
Mead  V.  Young  622 

Meath,  Bishop  of  V.  Winchester, 

Marquis  of  410.  414.  637 
V.    Bclficld, 

Lord  257 


Mee  V.  Reid 
Meekins  v.  Smith 
Melun  V.  Andrews 
Melville's  Lord,  Trial 


Page 

lo 

782 
377.  423 
410.  467 


Mercer  v.  Wise  371.  380.  385 
Pilercers  of  Shrewsbury  v.  Hart  641 

Mercdeth  v.  Hodges  384 

Meredith  v.  Gilpin  136,  137 

Merle  v.  More  174.  185 

Meres  v.  Ansel  771 

BTewsome  v.  Coles  381 

I\Ieyer  v.  Sefton  188.  409.  454 

Mitchell  V.  Johnson  661 

V.  Rabbets  633.  633 

Middleton  v.  Janvers  625.  627 
V.  Melton  307.  309.  311 


313,  314.  329,  330.  412.  441 
Mildmay's  case  761 

Mildrone's  case  10 

Miles  V.  She  ward  857 

Millard's  case  494 

Miller  v.  Falconer  100 

V.  Foster  644 

V.  Heinrick  625 

v.  Miller  660 

V.  Travers  712,  713,  715 

719,  720,  721,  722,  723,  724.  726 
727,  728,  729,  730.  733.  743 

V.  Warr  951 

Miller's  case  594.  898 

Mills  v.  Barber  834,  835 

v.  Collett  555 

V.  Oddv  674.  834,  835 

Milward  v.  Forbes  359.  368 

V.  Temple  409 

Milwood  V.  Walter  878 

Minshull  v.  Lloyd  681 

Minton's  case  854 

Mitchell  v.  Jenkins  464 

— : V.  Johnson  622 

V.  Hunt  109 

Mogg's  case  493 

Mohun's,  Lord,  case  297 

Moilliet  v.  Powell  866 

Moises  v.  Thornton  372 

Molineaux  v.  Molineaux      750.  75l 
IMolten,  q.  t.  v.  Harris  445 

Monke  v.  Butler  465.  828 

Monkton  v.  Attorney  General      224 

233.  239.  244.  248,  249.  276.  281 

282,  283 

Monroe  v.  Twislcton  168 

Montefiori  v.  Montefiori  '^60 


liv 


TABLE  OF  CASES  CITED. 


Moody  V.  King 

V.  Thurston 

Moor  V,  Adam 
Moore  V.  Strong 
V.  Tyrrell 


Page 

55,  5G.  154 

526.  553.  806 

785 

206 

180,   181 


254 
701 


Moravia  v.  Sloper 
Morevvood  v.  Wood      253, 
268.  271. 
]\Torey's  case 
Morgan  v.  Ambrose 

V.  Brydgcs         381.  631 

V.  Edwards 

V.  Harris 

V.  Hughes 

V.  Morgad 

V.  Prior 

Sir  C.  V.  Edwards 

V.  Tyler 

Morgan's  case 

Morics  V.  Thornton 

Morish  V.  Foote  100, 

Morres  v.  Thornton  647 

Morris  v.  Burdett  574 

V.  Davis  246.  463.  595 

V.  Miller  377.  463 

V.  Robinson  507 

Morrison  v.  Kelley  803 

V.  Lennard  4 

Morrow  V.  Saunders  819 

Morley's,  Lord,  case  5C5.  577 

Moseley  v.  Davies        258.  259.  266 


555 

266 
702 
432 
382 
909 
859 
879 
556 
659 
89 
863 
324 
10 
607 
101.  109 


V.  Hanford 

Moses  V.  Macfarlane 
Mosley's  case 

V.  IMassey 

Moss  V.  Gallimore 
Mostyn  V.  Fabrigas 
Mott  V.  Mills 
Moulen  v.  Dalison 
Moyser  v.  Peacock 
Mullett  V.  Hunt 
Muller  V.  Moss 
Mulvany  v.  Dillon 
Munn  v.  Godbold 
Munro  v.  De  Chemant 
Murphy's  case 
Murray  v.  Thornhill 

V.  Wise 

Mynn  v.  Joliffe 
Myttoa  v.  Harris 


5C5 

258,  259 

283,  284,  285 
756 
526 
299.  301 
723 
383 

555.  627.  795 
371 
484 
563 
786 
199 
563.  575 
683 
381 
39 
809 
562 
180 
603 


Page 


N. 


Nash  V.  Turner 

Neal  d.  Duke  of  Athol  v.  Wild- 
ing 

v.  Irving 

Neale  v.  Fry 
v.  Parkin 

V,  Swind 

V.  Wilday 

V.   Wylie 

Neave  v.  Moss 

Nelson  V.  Whittal  622. 

Nest's  case 

Neville  v.  Wilkinson 

Newburgh  v.  Newburgh       287. 

Newby  v.  Reed 

Newcastle,  Duke  of  v.  Clark 

V,   Hundred 

ofBroxtowe  268. 

New  College  case 

Newell  v.  Simpkin 

Newman  v.  Raithby 

Newland's  case 

Newham  v.  Stretch  209. 

Newton  and  the  Corporation  of 
Leicester,  case  of 

V.   Lucas  733. 

V.   Newton 

Newsam  v.  Carr 

Newsorne  v.   Coles 

Nicholl  V.  Williams 

Nicholls  V.    Dowding    and  an- 
other 399. 

V.  Downes 

V.  Parker,  250.  258.  277. 


381 

264 

405 

605 

374 

821 
oc)g 

102 
383 
661 
709 
760 
725 
469 
473 

279 
554 
806 
596 
123 
324 

228 
744 
228 
489 
593 
883 


Nicholson  v.  Smith 

Nightingale  v.  Devisme 

Nix  V.  Cutting  103. 

Nixon  V.  Mayoh 

Noble  V.  Kennoway      483.  738. 

Nodin  V.  Murray  456. 

Norden  v.  Williamson  51. 

Norman  v.  Morrell 

Norris  v.  Norris 

Northam  v.  Latouche  613. 

North  V.  Miles  215. 

Norton  V.  Shakespeare 

Norwood's  case 

Norvell  V.  Davies 

Novelli  V.  Rossi 

Nute's  case 


377 
283 
366 
628 
121 
186 
768 
671 
158 
740 
468 
623 
407 
88 
378 
118 
538 
433 


TABLE  OF  CASES  CITED. 


Iv 


Page 

O. 

Gate's,  Titus,  case  590 

Obichini  v.  Bligh,  532.  539.  542 
O'Coigley  and  O'Connor,  Trial 

of,  921 

O'Connor  v.  Cook  588 

Oddis  V.  Dornville  2.36 

Oddy  V.  Bovil  535 

Odwin  V.  Forbes  542 

Ogden  V.  Follcott  536 

Ogiivie  V.  Foljanibe  772 

Ogle  V,  Atkinson  384 

V.  Paleski  149.  561.  885 

Olive  V.  Gwyn  647.  689 

Oliver  v.  Bartlet  199 

V.  Cooke  751 

Olroyd's  case  578 

Omichund  v.  Barker,  8.  10.  12. 

607,  603 
Orr  V.  Brown  542 

V.  INIorris  655 

Osgathorpe  v.  Diseworth  530 

Oswald  V.  Leigh  479 

Outram  v.  Morewood  256.  253.  289 

320.  323,  324.  345.  412.510,511 

513.  515.  517,  518 

Oxenden  V.  Palmer,       94.  137,  138 

Oxlade  v.  Perchard  83 


Pacy  V.  Knollis 
Page  V.  Crook 

V.  Faucett 

V.  Mann 

Pain  V.  Beeston 
Palethorp  v.  Furnish 
Palmer  v.  Lord  Aylesbury 

V.  Ekins 

V.  Sells 

Palrnerston's,  Lord,  case 
Parkam  v.  Raynal 
Parke  v.  Edge 

Parker  v.  Barker 

v.  Hoskins 

V.  Manning 

V.  M'VVilliam 

v.  Palmer 

v.  Potts 

Parker  v.  Williams 

v.  Yates 


712 

60 

604 

622.  661 
927 
172 

561.  629 
382 
403 
354 
400 

866.  874 

208.  397 
659 
382 
886 
856 
461 
555 
179 


855. 


Parkhurst  v.  Lowton 
Parkins  v.  Cobbett 

V.  Hawkshaw 

Parkin  v.  Moon 
Parkinson  v.  Collier 
Parry  v.  Collis 

V.  Fairhurst 

V.  House 

V.  May 

Parsons  v.  Bellamy 

v.  Parsons 

Parteriche  v.  Powlet 
Partridge  v.  Coates 
Pasmore  v.  Bousfield 
Patterson  v.  Becher 
v.  Black 


Patrick's  Dr.,  case 

Patram's  case 

Paul  v.  Meek 

Paull  v.  Brown 

Payne  v.  Rogers 

Paxton  v.  Popham 

Peaceable  v.  Watson    316,  317.  412 

370.  380 

762,  763 

479 

654,  655 

371 


Page 
914 
630 

175.  622 
913 
769 
619 

870,  871 
382 
665 

322,  323 
714 
771 
664 

364.  453 
364 
469 
554 
29 
456 
118 

393,  394 
7,58 


Peacock  v.  Harris 
V.  Monk 


Pearce  v.  Davis 

V.  Hooper 

V.  Whale 

Pearcey  v.  Fleming 
Pcarcey  v.  Homing 
Pearson  v.  Fletcher 

V.  lies 


Pearson's  case 
Peckham  v.  Potter 
Pederson  v.  Stoffles 
Pedlar  v.  Page 
Pedley  v.  Wellesley 
Pedley's  case 
Petrie's  case 
Pellicot  V.  Angel 
Pembroke's  Lord,  case 
Pendock  v.  Mackinder 
Pendrell  v.  Pendrell 
Penn  v.  Scholey 

V.  Ward 

Penny  v.  Porter 


80 
156 
186 

786 
567 
416 
122 
657 
162 
898 
179 
758 
297 
17,  18 
169.  462 
198.  207 
847 
855 
714 
853 
411 


Penticost  v.  Lee 
Peppin  V.  Solomon 
Perchard  v.  Hamilton 
Perigal  v.  Nicholson    322,  323.  885 
Perkin  v.  Warden  of  the  Com- 
pany of  Cutlers  478 
Perkins  v.  Hawkshaw  409 


Ivi 


TABLE  OF  CASES  CITED. 


Perry  v.  (jibson 
Periyman  v.   Steggel 
Pettman  v.  Bridger 
Peto  V.  Hague 
Petton  V.  Walter 
Petty  V.  Anderson 


Page 
903  I 
154 
474 
402,  403 
583 
408 


Pole  V.  Rogers 
Pollard  V.  Bell 

V.  Scott 

V.  Smith 


Peyton  v.  Governors  of  St. 

Thomas  Hospital  402.  405 

Pfiel  V.  Vanbatenburg  479 

Phelps's  case  464 

Philips  V.  ]?acon  860 

V.  Shaw  860 

Phillips  V.  Allen  542 

V.  Buckingham,  Duke  of  48 

V.  Bury  554 

V.  Crawley  545 

V.  Earner  207.  909 

V.  Fowler  131 

V.  Hunter  526.  532 

V.  Wimburn  446 

Phillips's  case  494 
Phiilipson  v.  Chace  670 
Philp's  case  423 
Philpots  V.  Read  242 
Phipps  V.  Parker  660 
V.  Pitcher  120 

V.  Sculthorpe  382 

Pickford  V.  Gutch  372 

Pickles  V.  HuUings  113 

Pickering  v.  Noyes  816.  821 

Picton's,  General,  case  592.  606 

624, 625,  626 

Piercey's  case  231.  605 

Piercy  v. 574 

Piesley  v.  Von  Esh  80,81 

Pike  V.  Badnaring  902 

V.  Street  757 

Pinney  v.  Pinney  543. 645 

Pitcher  v.  Rinter  623 

Pitt  V.  Fairclough  336 

V.  Green  853 

V.  Kniijht  612 

Pitman  v.  Maddox        336,  337.  341 

343.  351 

Pittman  v.  Foster  401 

Pitton  V.  Walter  618 

Platamone  v.  Staple  761 
Plaxton  V.  Dare    251.  261.  237.  289 

315 

Plumer's  case  604 

Plummer  v.  Woodburne  542 

Plunkett  V.  Cobbett  193.497 

Pocock  V.  Billings  .         416 


Pomeroy  v.  Baddeley 
Pomfret,  Lord  v.  Smith 
Pond  V.  Dinnes 
Pool  V.  Eousfield 
V.  Court 


Page 
8u0 
634 
261.288 
266 
886 
287 
568 
125 
855 


Poole  V.  Dicas 

Pooley  V.  Goodwin 
Pope  V.  Biggs 

V.  INlonk 

V.  Skinner 


Poplett  V.  James 
Porter  v.  Cooper 
Porthouse  v.  Parker 
Portman  v.  Goring 
Potter  V.  Brown 
Potts  V.  Durant 


Powell  V.  Edmonds 

V.  Ford 

V.  Hodgetts 

V.  Hord 

■ V.  Milbank 


330.  336.  339,  340 

342 

683.  690 

383 

371 

848 

60 

616. 622,  623 

383 

820 

542 

602,603,604.634 

644,  645 


Pratt  V.  Dixon 

V.  Jackson 

Priestley's  case 
Prescott  V.  Flinn 
Prescott  V.  Phillips 
Pressley's  case 
Preston  v.  Carr 
V.  Merceau 


Price  V.  Anderson 

V.  Boultby 

V.  Edmunds 

V.   Fletcher 

V.  Harwood 

V.  HoUis 

V.  Littlewood 

V.  Torrington, 

V.  Neale 

V.  Williams 

Priddle's  case 
Price's  case 
Prideux  v.  Collier 
Prince  v.   Blackburn 

V.  Sam 

Pritchard  v.  Draper 

V.  Symonds 

Pritchard  v.  Walker 


771,  772 
692 

215.402 
98 

465.  823 
527 
732 
630 
405 
287 
566 
410 
771 
597 
824 
757 
858 

38  1 . 384 

405. 611 

254.  259.  606 

Lord      336.351 

383 

865 

18 

29.  622 

207.  402 

657.  660 
942 
400 
664 
371 


TABLE  OF  CASES  CITED. 


Ivii 


Pritt  V.  Faiicloush 


333 


Proctor  V.  Lainson 
Provis.  V.  Reed 
Prudhani  v.  Phillips 
Pullen  V.  Seymour 
Pulley  V.  Hilton 
Purcell  V.  Macnamara 
Purchase's  case 
Purdock  V.  Mackinder 
Purkiiis  V.  Hawkshaw 
Putt  V.  Rawsterne 
Pje's  case 

Pyke  V.  Crouch       92.215, 
353, 
Pjtt  V.  Griffiths 

Q. 


Page 

471.  682 

684 

578 

946 

550 

873.875 

644 

860,861 

213 

15 

661 

509 

854 

342,  343 

519,568 

660 


Queen's  case    12.  357,  358.  362.  420 

441,442.456.499 

Quelch's  case  592 


R. 


Radburne's  case  562.  570.  573 

Radford,^,  t.  v.  Mackintosh         370 

553 

375 

220.  434 

901 

632 

444 

647 

388.  449 

782, 783 

358. 362 

694 

655 

20.  42 

379 

497 

816. 819 

271 

176 

426 

56,57 

510 

209,  210 

756 

647 

389 

2i7.  447.595 


Radnor,  Earl  of  v.  Reeve 
Raggett  V.  Musgrove 
Raleigh,  Sir  W.,  Trial  of, 
Raniadge  v.  Ryan 
Ramsbottom  v.  Buckhurst 

V.  Tunbridge 

Ramsbottom's  case 
Rambert  v.  Cohen 
Randall  v.  Gurney 
Randle  v.  Blackburn 
Randolph  v.  Goode 

V.  Gordon 

Rands  V.  Thomas 
Rankin  v.  Florner 
Rastell  V.  Macquesta 
Ratcliffe  V.  Bleasley 

V.  Chapman 

Ratcli.Te's  case 
Rates's  case 
Raven  v.  Dunning 
Rawlins's  case 
Rawson  V.  Ilaigh 

'  V.  Walker 

Ray  V.  Clark 
Rayner  v.  Hail 
Read  v.  Passer 


Reading's  case 
Reason,  Trial  of 
Reay  v.  Richardson 
Reazon  v.  Ewbank 
Red  ford  /.  Birley 
Reed  v.  Battie 

V.  Denne 

V.  Jackson 


V.  James 

— —  V.  Prosser 
Rees  V.  Bowen 

V.  Lioyd 

V.  P.Iansell 

V.  Smith 


Reeve  v.  Underbill 
Reeves  v.  Slater 
Regg  V.  Cargenvcn 
Regina  v.  Gouche 

V.  Murray 

Re  Hick 

Reid  v,  Coleman 

V.  Marjiison 


Reilly's  case 
Rsmmie  v.  Hall 
Remon  v.  Hay.vard 
Rennie  v.  Robinson 
Rescous  V.  Williams 
Rest  v.  Hobson 
Reusse  v.  My^rs 
Rex  V.  Abergwelly 


Acckles 

Addis 

Alberton 

Alison 

Almon 

All  Saints 


Page 

524 

303 

773 

60 

212 

444 

443 

251.  254,255.264 

265.  284.  506 

89 

463 

620.  630 

473 

654 

842 

836 

381 

371 

471 

462 

627 

819.  824 

615 

21 

358,  359.  362 

703 

S82 

145 

470 

597 

221.227.294 

562 

598 

45.  38 

462 

463.596 

405 

248 


V.  All  Saints,  Southampton  471 
V.  Antrobus  251.  256.  309 


Appleby 

Atwood 

Babb 

Baldwin 

Balls 

Barker 

Barnard 

Barnes 

V.  Barr 

V.  Bartlect 


377 

30.  33.  666 

811.  814,  815 

520 

494 

803 

33,34 

371.  C45 

474 

422. 427 


V.  Biilhwick,  Inhabita.its  of 

165.648.  652 
V.  Eeavan  66 


Iviii 


TABLE  OF  CASES  CITED. 


Re 


V.  Bcdder 

V.  Bedell 

V.  Bell 

V.  Bellamy  616, 

V.  Benson 

V.  Bently 

V.  Bestland 

V.  Bidder 

V.  Bigg 

V.  Bignold 

V.  Bingham 

V.  Bird 

V.  Bishop  Auckland 
■  V.  Bishop  of  Chester 

V.  Blackman 
•  V.  Blaney 


Page 

69 

171.  227 

447 

623.  859 

439.621 

447.531 

470 

30 

453 

844 

652 

478 

941.  37 

554 


Rex 


Page 

Castleton  445,  448.662.678 
680,681 


68 

66 

297.  299 

565 

63,  64.75.520,521 

170 


V.  Bonner 
V.  Bon  on 
V.  Boston 
V.  Bowes 

V.  Bowler  583 

V.  Bramley  173.  225 

V.  Brampton  643 

V.  Bray  64.  71 

V.  Brazier  6 

V.  Brewer  175 

V.  Bridgeman,  Dr.  812 

V.  Briscoe  568 

■  V.  Britton  368.  424 

■  V,  Bromley  247 
•  V.  Bromwich  370 
-  V.  Brooke  909 

■  V.  Broughton  64.  521 

■  V.  Brown  475.618 

787. 


V.  Catesby 

V.  Cator 

V.  Cattorall 

V.  Chadderton 

V.  Chappie 

V.  Charnock 

V.  Cheadle 

V.  Christie 

V.  City  of  London 

V.  Clapham 

■  V.  Clarke 

■  V.  Clear 

■  V.  Clewes 
•  V.  Cliviger 

■  V.  Cole 

-  V.  Colley 

-  V.  Coombs 

■  V.  Commissioners  of  Land 


470 

69G 

629.  53 1 

227.  294 

447. 630 

31 

753 

301 

396 

246. 595 

204.216.385.  489 

490. 524.  850 

814 

362.422.430,431 

161 

68,81.  144.499 

886 

'465.  828 


Tax 

—  V.  Cooke 

—  V.  Cooper 

—  V.  Cope 

—  V.  Corden 

—  V.  Cornelius 

—  V.  Corsham 
— -  V.  Cotton 

—  V.  Court 

—  V.  Coveney 

—  V.  Cresswell 


V.  Brownell 

V.  Buckingham 

V.  Budd 

V.  Burbage 

V.  Burchenough 

V.  Burdett 
■  V.  Burley 
•  V.  Bury 


788 

809 

468 

783 

524 

440.  457.  860 

29 

227.  294 

V.  Buttery  and  M'Namara  548 

549 
V.  Cadogan,  Earl  of  813 

V.  Carr  357 

V.  Carlisle  844 

V.  Carpenter  133.353 

V.  Cass  424 

V.  Castle  Morton,  Inhabit- 
ants of  442 
V.  Castell  Careinion 


601.806 
792 
432 
210 
828 
813 
531 
278 
426 
567 
453 

V.  Crockett   299,  300,  301.  304 

305 

V.  Crossby  17 

598 

221 

64.521 

18.  425 

34 

£90.  600 

590.  67  1 

354 

448 

31,. 39 

182 

170 

444 

357 

864 

598 

430.  524 

30.  34 


V.  Crossley 

V.  Crowther 

V.  Dalby 


V.  Davis 

V.  Dawbur 

V.  Debenham 

V.  De  Berenger 

V.  Deboragh 


V.  Denis 

V.  Despard 

V.  Dixon 

V.  Doherty 

V.  Doran 

V.  Dowlan 

V.  Dowling 

V.  Duins 

V.  Dunn 

20  I V.  Durham 


TABLE  OF  CASES  CITED. 


Rex 


V. 

Eardsisland 

520 

V. 

Eden 

64. 

621 

V. 

Edmunds 

423. 

446 

V. 

Edwards 

921 

V. 

Eldershaw 

461 

V. 

Eldridge 

423 

V. 

Elkins 

631 

V. 

Ellicombe  63. 

427. 

484. 

665 

V. 

Ellis 

521 

V, 

Embden 

524 

V. 

Enoch 

424. 

429 

V. 

Eriswell   221. 

227. 

341. 

257 

562. 

565. 

570. 

577 

V. 

Erith 

226 

V, 

Fagent 

300. 

302 

V. 

Fagg 

447 

V. 

Falkner 

423 

V. 

Farleigh 

675 

V. 

Fearshere 

446 

V. 

Ferrers 

170 

V. 

Ferry  Frystone 

220. 

227 

294. 

562 

V. 

Fisher 

369. 

446 

V. 

Fitzgerald 

597 

V. 

Fletcher 

29.  70 

V. 

Forbes 

561 

V. 

Ford 

17.22 

V. 

Forsyth 

639 

V. 

Foster       204. 

216 

294. 

447 

V. 

Fraternity   of  Hosman 

in  Newcast 

e 

811 

V. 

Frederick  and  another 

160 

V. 

Fuller 

567 

V. 

Fursey 

455 

V. 

Gardner 

369. 

592 

V. 

Gay 

304 

V. 

Gibbs 

169 

V. 

Gibbons 

176. 

429 

V. 

Gibson 

444 

548, 

549 

V. 

Gilham 

11. 

860 

V. 

Gilson 

443 

V. 

Gisburn 

150 

X. 

Glossop 

863 

V. 

Gordon,  Lord  George 

639 

914 

V 

Grant 

18. 

432 

V 

Gray 

115. 

449 

V. 

Great  Earring 

don 

810 

V 

Great  Westowe 

809 

V 

Green 

426. 

428 

V. 

Greenwick 

227 

V 

Greepe 

22 

V 

Griftin 

216. 

433 

Rex. 


Page 

V.  Grimes 

518 

V.  Grimwood 

598 

V.  Groombridge 

461 

V.  Grundon 

554 

V.  Gwyn 

641 

V.  Haines      622,  623. 

638.  646 

V.  Hall 

446 

V.  Hammersmith 

144 

V.  Hanson 

465 

V.  Harbonne 

465.  468 

V.  Hardwicke       215. 

393.  395 

399.  429 

V.  Hardy 

893 

V.  Hargrave 

39 

V.  Harringworth 

649, 650 

V.  Harris                446. 

567.  631 

V.  Harvey 

432 

V.  Haslingham 

627 

V.  Hastings 

35 

V.  Hatfield 

473 

V.  Haughley 

647 

V.  Hawkins 

465 

V.  Haydon 

813 

V.  Hayman 

137 

V.  Haynes 

646 

V.  Hayward 

302 

V.  Head 

478.  641 

V.  Headcome 

384 

V.  Hebden 

517,  518 

V.  Helling 

471 

V.  Hickman 

446 

V.  Higgins 

421 

V.  Higgins  and  others           947 

V.  Hinckley 

470 

V.  Hodge 

432 

V.  Hodgkiss 

492 

V.  Hogdson 

49D 

V.  HojTg 

577 

V.  Holland 

805 

V.  Hollister 

815 

V.  Holt 

591,  592 

V.  Holy  Trinity 

443 

V.  Hope 

447.  630 

V.  Hopper 

506 

V.  Home 

844 

V.  Hough 

494 

V.  Howard 

453.  630 

V.  Howe                430. 

431.  925 

V.  Hube 

445 

V.  Hucks 

504 

V.  Hughes 

598 

V.  Hulcot 

471 

V.  Hulme 

64 

Ix 


TABLE  OF  CASES  CITED. 


Rex 


Page 

V. 

Hunt          212. 

450 

498 

499 
849 

V 

Hutchinson 

295 

V 

Jacob 

446 

V 

Jamos 

386 

630 

V 

JeffVic3 

611 

V. 

Jenkins 

433 

V. 

Johnson 

G8 

132 

676 

V. 

Jolifte 

354 

.461 

568 

V. 

Jones       30,31,32.34. 

357 

358.  427. 

433. 

453. 

795 

V. 

Kea 

IGO 

Ctrti 

V 

KeniUvorth 

531 

V. 

Kerne 

370 

V. 

King 

639 

V 

Kingston' 

430 

V 

Kirby,  Stephen 

531 

V 

Kirdtbrd 

94. 

136. 

138 

V 

Knaptoft 

529 

V. 

Lafone 

70 

V. 

Laindon 

388 

759 

V. 

Lambe 

446 

V. 

Lambert  and  Perrj 

1 

601 

V. 

Leake 

474 

V. 

Lee 

813 

V. 

Leefe 

859, 

860 

V. 

Leicester 

810 

V. 

Lewis       424, 

425. 

446, 
919. 

447 
921 

V. 

Lin  gate 

430. 

432 

V. 

Lisle 

518 

V. 

Lhingunnor 

759 

V. 

Llo>d 

295. 

474 

V. 

Locker  and  others 

160, 

161 

V. 

Long 

494, 

495 

V. 

Long  Buckby 

470 

V. 

Lubbenham 

384. 

390 

V. 

Lucas 

807. 

816 

V. 

Luckup 

67. 

132 

V. 

LufFe        160. 

169. 

171. 
462, 

227 
463 

V. 

Magill 

428 

V. 

Mallinson 

828 

V. 

Martin 

600 

V. 

P.Iarvlebone 

810 

V. 

Mathersell 

605 

V. 

Mattingley 

758, 

759 

V. 

M'Carty 

44« 

V. 

Mead         170. 

2&3, 

294, 

295 
813 

V. 

Mellor 

35 

V. 

Menetone 

64 

V. 

Merceron 

368 

Page 
Rex  V.  Merchant  Tailors  Com- 
pany 314 

V,  Middlezoy  650.  654 

V.  Midlam  803 

V.  Millard  494,  495 

V.  Mills  427 

V.  Montague  475 

V.  Moors         36.  451.  494.  669 

670 
Morgan  700.  703 

Morphew  568 

Morris  470.  621 

Morton    448.  678,  679,  6C0 
Mosley  300,  301 

Motherrel  641 

Muscol  143 

Mutineers  of  the  Bounty  69 
Neale  39 

Netherthong  636 

Netherseal  547 

Neville  368 

Noakes  38 

North  Be  din  681 

North  Petherton      246.  595 
Northwingiield  759 

Nottingham  225.  810 

Nuneham  Courtney         220 
227.  562 
63.  116.  521 


-  V. 

■  V. 

-  V. 

■  V. 

■  V. 

•  V. 

■  V. 

•  V. 

-  V. 

-  V. 

■  V. 

•  V. 

■  V. 

■  V, 

■  V. 

■  V. 

•  V. 

■  V. 

■  V. 

■  V. 

■  V. 

•  V. 

■  V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


Nunez 

Nute 

Nuts 

Nuttey 

Oldbury 

Oldroyd 

Olney 

Osbourne 

Owen 

Padstow 

Page 

Paine 

Parratt 

Partridge 

Payne 

Pearce 

Pearson 

Pendleton 

Perry 

Phipps 

Picton 

Piddlehinton 

Pie  rev 

Pike  " 

Pippet 


430 
947 
227 
531 
906 

758,  759 
746 
462 
443 
445 
562 
427 
427 
860 

497.  664 
421 
444 

169,  170 
140 
360 
680 

296 
860 


TABLE  OF  CASES  CITED. 


Ixi 


Page 
Rex    V.  Plumer  374.  45G 

V.  Poutiiey  4'-29 

V.  Piessly  447 

V.  Preston,  Lord  8 

V.  Preston,  Inhabitants  of  947 

V.  Purefoy  570 

V.  Ramsdcn  893 

V.  Rawden,  Inhab.  of  442,  443 

G79 

V.  Reading  171.  227.  447.  462 

V.  Reason  and  Tranter       3)2 

447 


V. 

Reebly 

643 

V. 

Reed 

447. 

566 

V. 

Rhodes 

503 

V. 

Richards 

429. 

447. 

630 

V. 

Ring 

787 

V. 

Ripon,  Mayor  of 

155 

V. 

Rislip 

513 

V. 

Rivers 

424. 

446. 

567 

V. 

Roberts 

497 

V. 

Rodham 

783 

V. 

Rogers 

465. 

828 

V. 

Rooke 

169 

V. 

Rookewood 

26 

V. 

Rosier 

431, 

432 

V. 

Row 

424. 

428, 

429 

V. 

Rowland 

2 

3.  69 

V. 

Rowley 

555 

494 

V. 

Rudd 

31 

161 

V. 

Russell 

524 

V 

Ryton 

656 

V. 

Salter 

2)0 

V. 

Sal  way 

745 

V 

Sarratt 

529 

531 

V. 

Savage 

577 

V 

Scaite 

295 

V 

Scammonden 

388 

V 

Scorey 

565 

V 

Scott 

746 

V 

Sellers 

304 

V 

Sergeant 

160 

161 

169 

V 

.  Sexton 

430 

V.  Shaftesbury,  Earl  of       922 
V.  Shaw  426,  427.  506 

V.  Shearman  and  others         69 
V.  Shene  524 

V.  Shelley  453.  307.  814 

V.  Sliepherd  426 

V.  Sheriff  of  Chester  805 

V.  Simons  392.  419 

V.  Slaughter  430 


Pago 

Rex  V-.  Smith         182.  221.  466.  495 

520.  569.  573.  616.  622.  623.  630 

806.  947 

V.  Smith  and  Homage  424 

V.  Smith  and  another     34.  160 

161 

V.  Smithers  373.  422 

V.  St.  Devereux  447 

V.  St.  Alartin's,  Leicester    893 

895 

V.  St.  Mary,  Lambeth  531 

V.  St.  Maiy's,  Nottingham  914 

V.  St.  JNIary  Magdalen,  Ber- 

mondsey  49 

V.  St.  Maryiebone  808 

V.  St.  Pancras      265.  512.  514 

520.  524 

V.  St.  Peters  173.  225 

V.  St.  Sepulchre  227.  679 

V.  Sparkes  176,  177 

V.  Spearpoint  607 

V.  Spencer  429.  621 

V.  Spilsbury  and  others        298 

306.  426.  446.  567 

V.  Staftordshire  806.  810 

V.  StalTordshire,  Justices  of  565 

V.  Stallard  487 

V.  Stannard  492 

V.  Steptoe  42l 

V.  Stoke  Golding  662.  677 

V.  Stone  66.  192.  830 

V.  Stourbridge  674 

V.  Straiten  and  others  947 

V.  Surrv,  Justices  of  815 

V.  Satton  8.  590,  591 

V.  Swallow  33,  34 

V.  Swatkins  373.  430 

V.  Tarrant  447 

V.  Taylor  447.  524.  859 

V.  Teal  15.  20.  42 

V.  Teasdale  132 

V.  Telicote  447 

V.  Thomas  426,  427.  567 

V.  Thompson  424.  427 

V.  Thornton  427.  566 

V.  Thring  623 

V.  Thruscross  640 

V.  Tilley  66 

V.  Tippet  423 

V.  Topham  370 

V.  Tower  816 

V.  Towns  end  520 

V.  Travers  5 


Ixii 


TABLE  OF  CASES  CITED. 


Page 
Rex  V.  Tubby  425 

V.  Tucker  6 

V.  Turner  466.  830 

V.  Tyler  424.  429 

V.  Upchurch  429 

V.  Upper  Bodington     175.  185 

V.  Upton  Gray  470 

V.  Utterby  610 

V.  Van  Butchell  299.  304 

V.  Vandercomb  and  Abbott 

493 

V.  Vereslt  453 

V.  Vincent  543 

V.  Vyse  607 

V.  Wade  6 

V.  Wakefield  and  others      170 

V.  Walker  425 

V.  Walkley  427.   435 

V.  Walter  446 

V.  Ward  616.  623 

V.  Warden  of  the  Fleet  22.  514 

V.  Wareham  227 

V.  Washbrook  555 

V.  Watkins  447 

V.  Watkinson  187 

V.  Watson     192.  456.  493.  607 

648.  671.  924 

V.Webb  35.38.425 

V.  Welborn  .300 

V.  Wells  36.  38 

V.  Wheelock  530 

V.  White  423 

V.  Whitehead  207 

. V.  Whiting  64.  492.  521 

. V.  Whitley,  Lower  395 

V.  Wick,  St.  Lawrence        530 

V.  Wickham  759 

V.  Williams  6,  7.  66.  849 

V.  Wilkes  .36 

V.  Wilson  427 

V.  Wilts  and  Berks  Canal 

Company  814 

__ —  V.  Winkles  819 

V.  Withers  185,  593 

V.  Wobourn  395 

V.  Woburn,  Inhabitants  of  916 

V.  Woodcock  302 

V.  Woodley  185 

V.  Worsingham  813.821 

V.  Wrangle  758 

V.  Wylie  494 

V.  York,  Mayor,  of  518 

Reyner  v.  Pearson  404 


Rhodes  V.  Ainsworth 
Rich  V.  Jackson 

V.  Topping 

Richards  v.  Bassett 
V.  Peake 


Richardson  v.  Allan 

V.  Anderson 

V.  Edmonds 

V.  Mellish 

V.  Watson 


Richey  v.  Ellis 
Rickards  v.  Mumford 
V.  Murdoch 


Ricketts  V.  Salwey 
Rickman's  case 
Ridgway  v.  Darwin 
Ridley  v.  Gyde 
V.  I'aylor 


Right  V.  Bucknell 
Ripon  V.  Davies 
Rivers  v.  Griffiths 
Roach  V.  Garvan 
Roberts  v.  Allatt 

V.  Barker 

V.  Bradshaw 

V.  Doxen 

V.  Eddington 

V.  Fortune 

V.  Harris 

and  wife  v.  Herbert 

V.  Karr 

V.  Gresley,  Lady      405.  409 

V.  Malsten  489 

Roberston  v.    French  472.  597.  738 

743 
Robinson  v.  Crutchley 

V.  Henshaw 

. V.  Nahon 

V.  Smyth 

V.  Williamson 


Page 

94.  263 

771 

125 

255,  279.  604 

846 

126.  902 

405.  626 
735 
598 
712.  738.  740 
818 
48a 

899,  900 
858 
466 
362 

209.  449 
125 
382 
188 
849 

535.  537 
922 
766 

671.  684 
454 
607 

526.  553 

88 

847 

474 


644 

364 
381 

801 

252.  266 
315.  323.  588 

V.  Yarrow  383 

Robinson's  case    398.  493.  497.  509 

517 
Robson  V.  Alexander 

V.  Andrade 

V.  Kemp 


Rolls 


Roche  V.  Campbell 
Roche's  case 
Rocher  v,  Busher 
Rodffuer  v.  Tadmire 


368 
395 
181.  184.  186 
209,  210 
208 
855 
636 
123 
489 


TABLE  OF  CASES  CITED, 


Ixiii 


Rodwell  V.  Redge 
Roe  V.  Aylmer 

d.  Brune  v.  Rawlins 

Roe  d.  Bushell  v.  Gore 

' V.  Davis 

Bart  V.  Day 

V.  Ferrars 

■ V.  Harvey 

• V.  Ireland 

• V.  Jeffery 

V.  Parker 

— —  V.  Rawlins 


807. 


Page 
465 
814 
318 
241 
4.5G 
360.  843 


357.  362,  363 
G67 
475.  588 
271.  604 
250.  261.  284.  604 
309.  323.  326.  332 
375 
307 
228 
670 
409 


V.  Robson 

— —  d.  Thorne  v.  Lord 

d.  West  V.  Davis 

V.  Wilkins 

Rogers  V.  Allen    254.  286.  289.  290 

857 

V.  Brooks 

V.  Jones 

V.  Pitcher  382 

V.  Wood 

Rogers's  case 
Rogerson  v.  Whittington 
Rokeby  Peerage 
Roley  V.  Howard 


474 
556 
383 
264.  267 
439 
142 
233 
838 
615 


Rolf  V.  Dart 
Rookwood's  case  21. 23.  923,  924,925 
Roos'  Peerage  232 

Roscommon  Peerage  case  234 

Rose  V.  Bartlett  733 

V.  Bryant  346.  350 

Ross  V.  Hunter  827 

Rothero  v.  Elton  100 

Roulston  V.  Clark  858 

Rouse  V.  Redwood  366.  377 

Rowcroft  V.  Bassett  313 

Rowe  V.  Brenton  454.  472.  485.  561 
580.  585.  593.  628,  629.  947 

— V.  Grenfel 

■ V.  Hasland 

V.  Howden 


Rowland  v.  Ashby 
Rowntree  v.  Jacob 
Rudd's  case  27. 

V.  Wright 

Rudge  V.  Ferguson 

v.  Freeman 

Ruding  V.  Newell 

v.  Smith 

Rugby  Charity,  Trustees  of",  v. 
Merryweather 

5 


472 

468 

816 

446 

387.  389.  758 

115.  123.  131 

252.  328 

89 

90 

483 

643 


Rullock  v.  Dunn 
Rumney  v.  Beale 
Rundel  v.  Beaumont 
Rush  V.  Smith 
Rushworth  v.  Craven 

■ v.  Pembr 

tess  of 
v.  Wilson 


Russell  V.  Rider 
Russel's  case 
Ruston's  case 
Ryder  v.  Mallon 
Ryle  V.  Haggle 
Rymer  v.  Cook 


Page 
400 
386 
598.  816 
908,  909 
598 
oke,  Coun- 

519.  573 

785 

59.  939 

236.  479.  503 

4.  11 

225.  233.  866 

207 

880.  884 


Sacheverell  Riots,  The  2l2 

V.  Sacheverell  386 

Sadler  v.  Robins  542 

St.    George,    Parish    of,    v.   St. 

Margaret  463 

St.  Katharine's  Hospital,  case  of 

605 
St.  Leger  v.  Adams  547 

St.  Paul's,  W^arden  of,  v.  Morris 

519 
Saloucci  V   Woodmas  534 

Sake  V.  Thomas  328.  598.  639 

Saher  v.  Turner    360.  386.  613.  620 
Sampson  v.  Yardley  219 

Samuel  v.  Evans  610 

Sandei"son  v.  Jackson  752 

V.  Laforest  208.  397 

Sandford  v.  Kensington  174 

V.  Raikes  751 

Sands  v.  Ledger  858 

Sandwell  v.  .Sandwell  897 

Sangster  v.  Mazarredo  399,  400 

Sapsford  v.  Fletcher  383 

Saruin,  Earl  of,  v.  SirB.  Spencer, 

563 
Saunders  v.  Pitman  801 

Sayer's  case  39 

Sayer  v.  Garnett  88,  89 

v.  Kitchen  359.  667 

Schamann  v.  Eatherheart  525 

Schinotti  v.  Bumstead  and  others 

807 
168 
389 
159 
397 


Scholey  v.  Goodman 

• V.  Walsby 

V.  Woodman 


474    Schooling  v.  Lee 


Jxiv 


TABLE  OF  CASES  CITED. 


Page 
Scott  V.  AUgood  513 

-^ V.  Clare  365.  445 

V.  Jones  668 

V.  Lewis        621.  630.  833.  837 

V.  Lifford  152 

V.  Maishall  407.  631 

V.  Sheai-man  551 

Scrimpshire  v.  Scriinpshire  536 

Searle  v.  Barringtou,  Lord  342.  346 

348,  349 
Seddon  v.  Tutop  508.  509 

Sedgwick  v.  Watkins  161 

Selby  V.  Harris  632 

Sellen  v.  Norman  479 

Sells  V.  Hoare  1 1 

Selwood  V.  Mildniay      713.  723.  730 
Senior  v.  Armitage  765 

Sergeson  v.  Scaley  582.  584 

Settle  Mill  case  261.  263 

Seven  Bishops,  Trial  of        700.  708 
Severn  v.  Olive  785 

Sewell  V.  Corp  607 

V.  Stubbs  364 

Sexton's  case  428.  431 

Shaftesbury  Lord,  v.  Lord  Digby     8 
Sharpe  v.  Scoging  924 

Shaw  v.  Picton  384 

Shawe  v.  Broom  415,  416 

Shearwood  v.  Pearson  443,  444 

Sheldon  v.  Whitakcv  859 

Shelton  v.  Livius  772 

Shelley  v.  Wright  387 

Shelling  v.  Farmer  809 

Shendom  v.  Thompson  316 

Shepherd  v.  Chewther  389 

V.  Gosnold  746 

•' — V.  Thorthouse  645 

Shepherd's  case  464 

Sheriffs.  Cadell  472 

Sherman  v.  Barnes  101 

vShipwith  V.  Shirley  325 

Short  V.  Lee  307.  312.  321.  323,  324 
328,  329,  330,  331.  453.  588.  605 
Shortreed  v.  Check  752 

Shott  v.  Streathfield  and  another  199 
Shumack  v.  Lock  402,  403.  405 

Shutt  V.  Bovingdon  568 

Shuttleworth  v.  Bravo  90 

v    Stephens  126 

Sidaway  v.  Hay  542 

Sideways  v.  Dyson  668 

Sidney,  Algernon,  case  of      31.  372 
Sikes  V.  Marshall  335.  337.  351 


Page 

Simons  v.  Smith  153.  396 

Simpson  v.  Henderson  737 

v.  Pickering  120.  515 

V.  Smith  and  another         909 


Simpson's  case 
Sims  V.  Kitchen 
Sinclair  v.  Fraser 

V.  Sinclair 

V.  Stephenson 

V.  Stej)henson 


Singleton  v.  Barrett 
Sissons  V.  Dixon 
Skaife  v.  Jackson 
Skinner  v.  Lord  Bellamont 
V.  Stocks 


Skipwith  V,  Shirley 
Slack  V.  Buchanan 
Slade's  case 
Slane  Peerage 
Slaney  v.  Wade 

Slater  v.  Lawson 
Slomon  V.  Heme 
Sloper  V.  Allen 
Small  V.  Allen 
Smallcombe  v.  Bruges 
Smalt  V.  Whitmill 
Smart  v.  Prujean 

V.  Rayner 

V.  Williams  321.  337,  338 

343 

V.  Wolff 

Smartle  v.  Williams 
Smith  V.  Battens 
V.  Battey 


429 
666 
537 
536 

664,  665 
893 
450 
465 
389 
254 
121 
683 

366,  367 
509 
229 
230.  235.  272.  281 
388 
401 
396 
857 
758 
397 
782 
751 
835 
341 
344 
532 
351.  6&7,  688 
481 


208. 


V.  Beadnell 
V.  Blackham' 
V.  Blandy 
V.  Bromley 
V.  Buchanan 
V.  Chester 
V.  Cramer 
V.  Davies 
V.  Dettruitz 


358. 


d.  Earl  of  Jersey  v.  Doe 


V.  Harris 
v.  Johnson 
V.  Lyon 
V.  Maxwell 
V.  Mercer 
V.  Miller 
V.  Moon 


343 
368 
91 
362 
394 
542 
383 
209,  210 
810 
416 
734 
735 
121 
508 
395 
643 
383 
377 
373 


TABLE  OF  CASES  CITED. 


Ixv 


Smith  V.  Prager 

V.  Rummens 

V.  Sainsbury 

V.  Smith 

V.  Taylor 

V.  Veale 

V.  Whittingham 

V.  Wilson 

V.  Young 

Smith's  case 
Snow  V.  Cutler 
V.  Phillips 


Snowball  v.  Goodriche 
Sodtbrd  v.  Chambers 
Solita  V.  Yarrow 
Solomon  v.  Turner 
Somerset's,  Duke  of,  case 


Page 

75.  117.  5'iO 

63.  520 

703 

412.  632 

370.  371.  384 

563 

312.  412 

738.  739.  743 

358.  363.  397.  449 

665 

435.  439.  496.  622 

640 

391.  557 

406 

383 

699 

381 

483,  484 


Somerset  v.  France 

Sowers  v.  Leggatt 

Spargo  V.  Brown  218.  307.  312. 


Sparin  v.  Dan 
Sparke  v.  Middleton 
Sparrow  v.  Farrant 
Spence  v.  Stuart 
Spenceley  v.  De  Willot 

V.  SchuUenberg 

Spencer  v.  Billing 
V.  Goldinff 


482. 


2G3.  483,  484 
485.  640 
827 
392 
395 
576 
175 
701 
783 
910 
187 
454 
141 
621 
155 
830 
531 
669 
357 
611 
849 
857 
503 


Spencer's  case 

Spicer  v.  Burgess 

Spieres  v.  Parker  481, 

Spitalfields  v.  Bromley 

Spragge's  case 

Sprain  v.  Drax 

Spring  \.  Eve 

Spybey  v.  Hide 

Squire  v.  Hunt  855, 

Stafford  v.  Clark 

,  Marquis  of,  v.  Coyney    474 

Stafford  Peerage  case  229.  243 

Staffo)'d's  case  578 

Stainer  v.  Droitwich,  Burgesses 

of  605 

Stammers  v.  Dixon  747 

Standage  v.  Creighton  409 

Standen  v.  Standen        173.  245.  723 

7.33.  735 
Stanley,  Sir  T.  v.  White       325.  374 

486 
V.  Ficldcn  360 


Stanwix,  General,  case  of 
Stapleten  v.  Stapleton 
Stajjylton  v.  Stapylton 
Stead  V.  Heaton    309.  313. 
Stearn  v.  Mills 
Steel  V.  Prickett   250,  251. 

Steglitz  V.  Egginton 
Stephen  v.  Gwenap 
Stephens  v.  Crichton 
V.  Pinnev 


Stevens  v.  Berwick  on  Twe 

V.  Moss 

V.  Pinney 

V.  Thatcher 

V.  Whistler 

Stewart  v.  Barnes 
Still  V.  Halford 
Stobart  v.  Dryden  221, 

Stock  V.  Booth 
Stockfleth  V.  De  Tastet 
Stoddart  v.  Palmer 
Stonard  v.  Dunkin 
Stone  V.  Bale 

V.  Blackburn 

V.  Forsyth 

V.  Lennox,  Lord  G. 


Stone's  case 
Stork  V.  Denew 
Storer  v.  Hunter 
Storr  V.  Scott 
Stradling  v.  Morgan 
Stranger  v.  Searle 
Stratford's  case 
Stratton  v.  Rustal 
Street  v.  Brown 
Strickland  v.  Ward 
Strode  v.  Russell 
v.  Winchester 


Strong  v.  Dickenson 
V.  Rule 


Strother  v.  Barr 
V.  Willan 


Stroud  V.  Willis 
Strutt  v.  Bovingdon 
Stuart  v.  Greehall 
V   Lovell 


353. 


Studdy  V.  Sanders 
Stump  V.  Ayliffe 
Summers  v.  Mosclcy 
Summerset  v.  Adamson 
Sussex,  Earl  of,  v.  Temple 


Page 
469 
227 
225 

327.  .329 
389 

271.  .374 
473 
405 
351 
795 
443 

ed   809 

225.  227 
444 

405,  406 
846 

113.  143 

627.  6.32 

291.  946 
474 
368 

853.  861 
384 
763 

148.  885 
645 
176 
211 
561 
480 
377 
748 

696,  697 
555 

388,  389 
820 
558 
740 

317.  .325 
783 
855 

441.  443 

597.  607 
382 

512.  516 
603 

489.  497 

187.  386 
586 
908 
377 

386.  413 
414 


TABLE  OF  CASES  CITED. 


Suster  V.  CowcU  817 

Sutteii  V.  Bishop  20.  131 

Sutton  V.  Buck  47^2 

V.  Gregory  340 

Swain  v.  Roberts  879 

Swallow  V.  Beaumont  858 
Swan  and  Jet^ereys,  case  of          840 

Swemlen's  case  l<->9 
Swinnerton  v.  Stafford,  Marquis 

of  S3.  C38 

Swine  V.  Bell  C87 

Sybray  v.  White  406 

Sydenham  v.  Rand  782 

Sylvan  v.  Stradling  382 

Sykes  v.  Dunbar  194 

Sylvester  v.  Hall  843 

Symmons  v.  Knop.  860 


Talbot  V.  Hodgson  660 

V.  Hodson  470 

V.  Lewis  269 

V.  Vilk-boys  810 

Tainberlain  v,  Humphreys  588 

Tanner  v.  Bean  854 

' V.  Taylor  893 

Tapley  v.  Wainwright  846 

Taplin  v.  Atty  664 
Tarleton  v.  Tarleton              537.  541 

Taverner's  case  496 

Taylor  v.  Blacklow  184 

V.  Briggs  738.  743 

V.  Cole  231.  391 

V,  Cook  263 

V.  Croker  383 

V.  Duplock  469 

V.  Foster  175 

V.  Fox  314 

V,  Hooman  863 

V.  .Jones  686 

V.  Kinloch  397 


Page 
Tcnny  v.  Jones  475 

Terry  v.  Huntingdon  553.  5dG 

Thanct,  Earl  of  v.  Foster  582,  583 
Thatcher  v.  Waller  565.  570.  577 
Thatcher's  case  585 

The  King  v.  All  Saints  Worces- 
ter, Inhabitants  of     164,  165,  166 


Boston 
Clivigcr 


162. 


164, 
166, 


116 
165 
167 
147 


v.  Fox 

V.   Paget,    Lord,  and 

others  947 

v.  Luffee  171 

V.  Prosser  71 

in    aid    of    Reed    v. 
Hopper  614.  690 

V.  Mayor    and    Com- 
monality of  London 


Whiting 
W' oburn 
Coslinj; 


63. 


Thelluson  v 
Thomas  v.  Ansley 

V.  David 

V. 

d. 

V. 


Foyle 

Jones  V.  Thomas 

London,  (sheriffs) 

Newton 

Thomas 


48 
116 
158 
592 
445 
886.  910 
472.  597 


718. 


Thomas's  case 
Thompson  v.  Austin 


V. 


Kinloch 
Royal  Exchange  As- 
surance Company       795 
Williuiiis        198.  409,  410 
948 


Thorne  v. 
Thornton 


v.  Zaniira 

Teal  by  v.  Gascoyne 
Teed  v.  Martin 
Telicote's  case 
Tellard  v.  Shebbcare 
Tempany  v.  Bernard 
Tennant  v.  Strachan 


383 

631 
597.  683 

566 

257 
858,  859 

87  1  Thurle  v.  Maddison 


373 
619 
913 
726 
566 
.357,  358.  363 
367 
Rlackhurst  527 

V.  Bridges  397 

V.  Davenport  377 

V.  Donaldson  547 

V.  Lamb  362 

V.  Lawlev,  Lady  734.  740 
V.  Leach  480 

and  Uxor  v.  Trevanion 

203 
Rolffe  468 

V.  Jones  856 

v.  Lyster  862 

V.  Royal  Exchange  As- 

901 
427 
508 


surance  Company 
■  Thornton's  case 
I  Thorpe  v.  Cooper 

I V.  Gisburne 

i  Threlfall  v.  W^ebster 
I  Throgmorton,  Sir  N.,  Trial  of 
V.  W'alton 


693 
817 

434 
468 
687 


TABLE  OF  CASES  CITED. 


Ixvii 


Thurston  v.  Stafford 
Thwaites  v.  Richardson 
Tickle  V.  Brown 
Tilley's  case 
Tilk  V.  Parsons 
Tillo  V.  Greeve 
Timperley  v.  Scott 
Tindal  v.  Whitrow 
Tinkler  v.  Walpole 


Page 
947 
400 
413 
561 

207.  448 
142 

360.  561 
413 
597 


Tinkler's  case        294.  296.  299,  300 

Tinney  v.  Tinney 

Title  V.  Grevet 

Todd  V.  Winchelsea 

Tomkins  v.  Ashley 

V.  Attorney  General 


Tong's  case 
Tongue's  case 
Tooker  v.  Beaufort, 


Duke  of 

472 


Toosey  v.  Williams 
Topham  v.  Braddick 
Torrington's,  Lord,   case 
Tothill  V.  Hooper 
Tounson  v.  Tickle 
Tovey  V.  Lindsay 
Towers  v.  Moor 
Townley's  case 
Townend  v.  Downing 
Townsend,  Marq.  v.  Norwich, 
Bishop  of 

V.  Chainpernown 

Trantor,  Trial  of 
Travis  v.  Chaloner 


754 
914 
353 
558 
598 
434 
26.  31 
.584 
613 
682 
479 
341 
138 
480 
536 
740 
862 
107 


94. 


V.  Collins 
V.  Oxter 


Tremain  v.  Faith 
Trevivian  v.  Lawrence 
Trelawney  v.  Coleman 
V.  Thomas 


477 
477 
303 
263.  414.  513 
518 
820 
589 
785 
510 
200,  201 
86.  123 


Trial  of  the  Regicides  8 

Trist  V,  Johnson  665 

Trotter  v.  Harris  472 

Trowell  V.  Castle  470.  619 

Trowter's  case  304 

Truslove  v.  Buiton  409 

Trustees  of  British  Museum  v. 

Furnis 
Tucker  v.  Barrow 

V.  Crack lin 

V.  Wilkins 


Tullock  V.  Dunn 
Turner  v.  Crisp 


599 
.368 
855 

602.  606.  644 
393 

346.  348,  349 


Page 

Turner  v.  Gethin  809 

V.  Pearce  148 

V.  Pearte  885 

V.  Railton  188.  366 

V.  Turner  464 

Turner's  case         423.  434.  520.  524 

Turquano  v.  Knight  180,  181.  185 

Turton  v.  Benson  366 

Twemlow  v.  Oswin  469 

Twiselton's  claim  247 

Tyler  v.  Leeds,  Duke  of       405.  632 

Tyrwhitt  v.  Wynne  486 


U. 

Uhde  V.  Waters 
Ulrich  V.  Lichfield 
Underhill  v.  JJurham 
-  V.  Watts 


Upton  V.  Curtis 


739.  755 

727 

585.  587.  628 

445 

95 


V. 


Vacher  v.  Cocks  197.  208. 
Vaillant  v.  Dodemead    174.  176, 
Vallance  v.  Dower  738. 
Vaughan  v.  Fitzgerald 
V.  Martin 


Vaughan's  case 

Vandercomb  and  Abbott,  case  of 

Vandercomb's  case 

Van  Nyvel  v.  Hunter 

Van  Omeson  v.  Dowick 

Vant  Wort  v.  Wooley 

Venafra  v.  Johnson 

Venning  v.  Shuttleworth 

Vernon's  case 

Vicary's  case 

Vice  V.  Anson,  Lady 

Villers  v.  Beaumont 

Ville  V.  Varsovie 

Vincent  v.  Cole 

V.  Prater 


740. 
386. 


441 


Viner's  case 
Viney  v.  Barrs 
Vooght  V.  Winch 
Vowke's  case 
Vowles  V.  Miller 
V.  Youni; 


475.  510. 
493. 

242 


W. 

Waddincton  v.  Cousins 


656 
177 
768 
563 
898 
493 
803 
524 
632 
639 
410 
631 
127 
762 
399 
666 
762 

la 

444 
199 
324 
482 
512 
496 
437 
243 


700 


Ixviii 


TABLE  OF  CASES  CITED. 


Page 

WacUcy  v.  Baylis  747 

Wadswoith  V.  flainshaw  180 

Wagstafi'v.  Wilson  409 

Waithnian  v.  Weaver  489 

Wake  V.  Lock  101.  110 

W^ikeHeld's  case  1G9.  782 

Wakelicld,  Trial  of  727 

Wakonian  v.  W' est  288 

W^aldcn  Peerage  232 

Waldridge  v.  Kennison  366,  367 

Waldron  v.  Combe  542.  607 

. V.Ward  174,175 

Walker  v.  Beauchamp  277.  642 

. V.  Broadstock  317.  413 

V.  Burnell  371.  379 

and  others,  case  of  500 

V.  Holman  322 

V.  Kearney  17.  19 

V.  Wetter  526 

V.  Whitter  537 

■ V.  W^iidnian 

V.  Wingfield 

Wallace  v.  Cook 

V.  Small 

Waller  v.  Horsfall 


241, 


W^allis  V.  Delaney 
W^allis's  case 
Walter  v.  Green 

V.  Gunner 

Walter's  case 
W^alters  v.  Mace 

V.  Pfiel 

W^alton  V.  Shelly 
W^andless  v.  Cawthorne 
Ward  v.  Bourne 
W^ard's  case 

■ v.  Ellayn 

v.  Haydon 

V.  Man 


—  V.  Wells 

—  V.  Wilkinson 


540 
180 
596 
597 
366 
683 
622.657.  661 
850 
207 
474 
466 
852.  864 
643 
41.71.263 
151 
59 
622 
527 
52,  53,  54.  70 
69 
578,  657 
103.  121.  504 
658. 660 
854 
681 


W^ardeM  v.  Fermor 
Wardle's  case 
Wargent  v.  Hollings 
Warren  v.  Greenville    313.  325,  .326 

329 

Hastings,  Trial  of  906 

V.  W^arren  47 1 

Warriner  v.  Giles  806 
Warwickshall's  case  419.  432 
Waterman  v.  Soper  473 
Watkins  v.  Morgan  873 
v.  Vince                            405 


Watson  v.  Clark 

V.  King 

,  trial  of 

V.  Threlkeld 

V.  Wace 


468,  469. 
192.  194. 

378. 

Watson's  case  39.  210.  376.  450, 
466.  479.  921.  923. 
Watts  V.  Lawson 

V.  Thorpe 

Waugh  V.  Russell 
Wayman  v.  Hilliard 
Waymell  v.  Read 
Weall  V.  King 
Weaver  v.  Prentice 
Webb  v.  Fox 

v.  Plummer  764.  766, 

V.  Potts 

V.  Smith  398. 

Wedrington's  Dr.  case 
Weeks  v.  Maillardet 

V.  Sparke  241,  251,  252. 

255.  260.  266.  268. 
Welborne's  case  301. 

Weld  V.  Hornby 
Weller  v.  Governors  of  Found- 
ling Hospital  49. 
Wells  V.  Fisher 

V.  Fletcher 

V.  Jesus  College  253, 

V,  Maccarmick 

V.  Porter 


Welsh  V.  Nash 

— ■ V.  Richards 

V.  Seabone 

West  V.  Andrews 


West's  case 
Westbeer's  case 
W^estlake  v.  Collard 
Weston  V.  Ernes 

V.  Vaughton 

Wharcham  v.  Routledge 
Whatley  v.  Fearnley 
Whateley  v.  Manheim 
Wheatley  v.  W^illiams 
Wheeler  v.  Atkins 
v,  Lowth 


28,  914. 


588. 
359. 

512. 

358. 


Wheeling's  case 
Whettuck  V.  Waters     227.  234. 
Whiley's  case 

Whitaker  v.  Bank  of  England    ' 
W^hitamore  v.  W^aterhouse 
W^hitbourne  v.  Pettifer 
i  Whitbread  v.  May 


age 
461 
598 
214 
381 
380 
451 
925 
366 
397 
858 
366 
758 
856 
607 
472 
767 
253 
408 
554 
858 
254 
270 
304 
746 

.396 
171 
173 
259 
555 
737 
556 
806 
479 
857 
918 
576 
.366 
755 
603 
668 

80 
515 
188 
561 
619 
423 
596 
494 
197 

97 
819 
717 


TABLE  OF  CASES  CITED. 


\xi% 


Page 
Whitcomb  V.  Whiting  400, 

White  V.  Cayler  17*2 

■ V.  Driver  468 

' V.  Lisle       252,  253.  255.  271 

286.  314 

' V.  Sayer  764 

' V.  Wilson  4€8.  756.  855 

White's  case  430 

Whitehead  V.  Scott         197.  199.444 

668 

V.  Tattersall  406.  555 

V.  Tucket  405 

Whitehouse  v.  Atkinson  98 

Whitehouse's  case  170 

Whitelock  V.  Baker       224.  241.  276 

' V.  Musgrove  661 

Whitford  V.  Tuting  443.  664 

Whitmore  v.  Wilks  49,  396 

W^hitnash  v.  George  311.  411 

Whipple  V.  Manley  758 

Whitter  v.  Cazalet  824 

Whitwell  V.  Bennett  855 

Wickes  V.  Clutterbuck  556 

W^igglesworth  v.  Dallison     764,  765 
Wightwick  V.  Banks  613 

Wigley  V.  Jones  805 

Wild's  case  29.  426 

Wildman  v.  Glossop  855 

Wilkins  v.  Ford  89 

V.  Wingate  382 

Wilkinson  v.  Adam  745 

V.  Lutwidge  383 

— ■ V.  Payne  463 

Willaume  v.  Gorges  479 

Williams  v.  Bartholomew  382 

— V.  Bridges  396 

V.  Davies  833.  843 

— V.  East  India  Company 

439. 463.  828 

V.  Goodchild  254 

— ■ V.  Innes  405 

V.  Johnson  167 

V.  Jones  771 

V.  Lord  Bagot  527 

V.  Mundie  178.180 

— V.  Mannings  674 

V.  Stevens  90 

V.  Taylor  353 

V.  Thomas  839 

V.  Williams   468.  480.  561 

V.  Yovmghusband  680 

Williams,  Trial  of  9 

Williamson  v.  Allison  853 


Page 
Williamson  v.  Thompson  252 

Willingham  v.  Matthews  783 

Willis  V.  Bernard  197.  201.  328 

V.  Peckham  785 

Willis's  case  435.  5.36 

Wilson  V.  Bowie  444 

V.  Clerk  863 

q.  t.  V.  Gilbert  862 

V.  Hirst  152.  154 

V.  Hodges  468 

V.  Mitchell  378 

V.  Rastall   174,  175,  176,  177 

178,  179 

V.  Kogers  806 

V.  Turner  409 

V.  Wilson  480 

Wilton  V.  Webster  201 

Wiltshire  v.  Sidford  473 

Wiltzie  V.  Adamson  375 

Winch  V.  Winchester  772 

Winkworth's  case  494,  496 

Winsmore  v.  Greenback  172 

Winter  v.  Wroot  201 

Wishaw  V.  Barnes  120 

Withen  v.  Law  246.  595 

Withers  v.  Harris  516 

Withnell  v.  Gartham  256.  747 

Woltr  V.  Oxholm  536 

Wood  V.  Braddock  400 

V.  Dodson  5& 

V.  Drury  657 

V.  Strickland  66& 

V.  Veal  474 

Woodbridge  v.  Spooner  756 

Woodcock's  case   170.  295.  297.  299 
302,  303,  304.  569 
Woodcraft  v.  Kinaston  612 

Woodford  v.  Ashley  859' 

Woodley  v.  Brown  385.  607 

Woodnorth  v.  Lord  Cobham         286 

323, 324 
WoodrufTe  v.  Williams  632 

Woodward  v.  Cotton  611 

V.  Larking  387 

Woodyer  v.  Haddon  474 

Woolett  V.  Roberts  390.  557 

Wooley  V.  Birkenshaw  474 

V.  BrownhiU       253. 315.  474 

685 

V.  Roe  351 

Woolway  v.  Rowe  260.  416.  418 

Worrall  v.  Jones         47.  51,  52.  158 
Worsley  v.  Filisker  950 


Ixx 


TABLE  OF  CASES  CITED. 


Wnoton  V.  T?arfon 
Wright  V.  JJcckctt 

V.  Court 

V.  Lett  lor 

V.  iVctlierwood 

V.  J'auliii 

V.  Pindar 

. V.  Rudd 

V.  Sharpc 

V.  Doe  d.  Tath 

438.  441. 
Wright's  case 
Wright  on  the  demise 

V.  Littler 
Wrottesley  v.  Bendert 
Wyatt  V.  Bateman 

V.  Gore 

V.  Wilkinson 


Page 

836,  837 

902.  904.  907 

"215 

221 

469 

59 

949 

253 

948 

am      198.  354 

517.  561.  572 

428.  899 

of  Clymer 

292 
398 
659 
193 


Wyat  V.  Hertford,  Marquis 
Wych  V.  Meale 
Wyndham  v.  Chetwynd 
Wynne  v.  Anderson 
V.  Tyrwhit 


Yabsley  v.  Doble 
Yates  V.  Carnsew 

V.  Harris 

V.  Leijih 


Yeates  v.  Pirn 
Yewin's  case 
York  V.  Blott 
Young  V.  Bairner 

V.  Lynch 

V.  Smith 

V.  Wright 


Zouch  Peerage  case      229. 
William,  pedigree  of 


Pago 

of,     389 

399 

144.  151 

59 

312.  331.  652 

407 

858 

288 

331 

769 

913 

124 

85.  154 

811 

394.  396 

409.  852 

283.  601 

229 


TREATISE 


THE   LAW    OF   EVIDENCE. 


With  a  view  to  assist  the  proceedings  of  Courts  of  Justice,  Object  of 
on  questions  of  a  fact  submitted  to  them  for  their  decision,  the  Evide^nce" 
law  has  laid  down  certain  rules  respecting  the  admissibility  and  plan  of 
and  effect  of  evidence,  and  the  order  in  which  it  should  be 
adduced.     These  rules  constitute  the  Law  of  Evidence,  and 
are  the  subject  of  the  present  Treatise  ;  the  object  of  which 
will  be  to  ascertain  the  most  convenient  and  surest  means  of 
arriving  at  truth,  upon  controverted  questions  of  fact. 

The  evidence  adduced  before  juries  upon  controverted 
questions  of  fact,  is  of  tAvo  kinds,  viz.  1st,  Parol  evidence, 
consisting  of  the  viva  voce  examination  of  witnesses ;  and 
2ndly,  Written  evidence.  In  treating  of  these  species  of  evi- 
dence, the  present  volume  will  be  divided  into  three  parts. 
In  the  first  part,  it  is  proposed  to  consider  the  subject  of  proof 
by  witnesses,  and  the  principal  rules  of  law  relative  to  evi- 
dence in  general  ;  in  the  second  part,  to  consider  the  subject 
of  written  evidence  ;  and  in  the  third  part,  it  is  proposed  to 
consider  certain  branches  of  the  law  of  evidence,  chiefly  of 
a  practical  nature,  such  as  the  means  of  enforcing  the  atten- 
dance of  witnesses,  the  order  in  which  the  evidence  should 
be  adduced,  the  mode  in  which  witnesses  should  be  examin- 
ed, bills  of  exceptions  and  demurrers  to  evidence. 


n\  *PART    THE    FIRST 


CHAPTER  I. 

OF    THE     EXCLUSION     OF     EVIDENCE    IN    CERTAIN    CASES,     AND    OF 
INCOMPETENCY    FROM    DEFECT    OF    UNDERSTANDING. 

ff'el'idence  'The  parties  to  a  suit  are  not  admitted  to  adduce  every  de- 
jn  general,  scriptioii  of  evidence  which,  according  to  their  own  notions, 
may  be  supposed  to  elucidate  the  matter  in  dispute  ;  if  such 
a  latitude  were  permitted,  evidence  might  be  often  brought 
forward,  which  would  lead  rather  to  error  than  to  truth,  the 
attention  of  the  jury  might  be  diverted  by  the  introduction  of 
irrelevant  or  immaterial  evidence,  and  the  investigation  might 
be  extended  to  a  most  inconvenient  length.  In  order  to 
guard  against  these  evils,  the  law  interferes,  in  the  first  in- 
stance, by  limiting  and  regulating  the  admissibility  of  evi- 
dence. 

It  is  the  province  of  the  Judge  presiding  at  the  trial,  to  de- 
cide all  questions  on  the  admissibility  of  evidence  ;  it 
will  be  for  the  Judge  also  to  decide  any  preliminary  question 
of  fact,  however  intricate,  the  solution  of  which  may  be 
necessary  for  enabling  him  to  determine  the  other  question  of 
admissibility.  Upon  this  subject,  it  has  been  said  by  Mr.  J. 
Buller,  (1)  that  whether  there  is  any  evidence  is  a  question 
for  the  Judge,  but  whether  the  evidence  is  sufficient  is  a 
question  for  the  jury. 
Exclusion         The  law  excludes  various  descriptions  of  evidence  as    im- 

of  certain  ,  ii  ^         •  ■>        •  i  ^  ^ 

witnesses,  proper  to  be  submitted  to  the  jury,  and  rejects  altogether  the 
ofexdusTon^  testimony  of  certain  persons,  who  are  on  this  account  termed 
incompetent  witnesses.  The  rules  affecting  the  competency 
[  *3  ]  of  witnesses,  *are  chiefly  founded  on  the  consideration,  that, 
in  the  generality  of  instances,  the  testimony  of  those  witness- 
es, whom  the  law  deems  incompetent,  would  mislead  juries  ; 
and  it  is  obvious  that  the  propriety  of  the  exclusion  in  each 
particular  case  must  be  judged  of,  according  to  the  constitu- 
tion of  the  tribunal  to  which  the  evidence  is  submitted,  and 
with  reference  to  the  mode  of  procedure  before  it.     For  this 

(1)  Carpenter's  Company    v.    Hay-  questions  of  fact,  judges  occasionally, 

ward,    Doug.    37.5.       N.    B.    P.  297,  in  practice,  take  the  opinion  of  the  jury 

where  the  admissibility  of  evidence  de-  upon  them, 
pends  upon   the   decision   of    intricate 


Ch.  l.J  Of  Exclusion  of  Evidence^  Sj'c. 

purpose,  it  is  necessary  to  refer  to  the  difference  which  exists 
between  judicial  investigations  and  the  ordinary  transactions 
of  hfe,  more  especially  with  regard  to  the  space  of  time  al- 
lowed for  decision,  the  temptations  to  deceive,  the  facilities  of 
deception,  and  the  consequences  of  deciding  incorrectly.  It 
is  true,  it  may  happen  in  some  particular  instances,  that  the 
legal  tests  of  incompetency  may  affect  very  slightly,  if  at  all, 
the  credit  of  a  person  as  a  witness,  in  their  application,  while 
there  may  be  other  grounds  of  objection,  though  not  strictly 
legal,  which  would  cast  the  strongest  suspicion  upon  his  tes- 
timony. But  it  Is  to  be  remembered,  the  established  rules  for 
the  exclusion  of  witnesses,  do  not  profess  to  be  infallible  tests 
of  credibility ;  and  further,  that  the  propriety  of  the  rules  of 
evidence  must  be  judged  of  by  their  general  tendency  and 
their  general  practical  result. 

The  cases,  in  which  a  witness  is  deemed  incompetent  to 
give  any  evidence  at  all,  are  fourfold  :  viz.  1st,  When  the 
witness  labours  under  a  defect  of  understanding.  2d,  Where 
he  refuses  to  take  an  oath,  or  from  defect  of  religious  princi- 
ple does  not  acknowledge  its  sanction.  3rd,  Where  his  char- 
acter is  infamous  in  consequence  of  a  conviction  of  certain 
crimes.  And  4thly,  Where  he  is  interested  in  the  matter  in 
issue. 

Every  person,  not  affected  by  any  of  these  objections, 
will  be  competent  to  give  evidence.  *'  I  find  no  rule  less 
comprehensive  than  this,"  said  Mr.  Justice  Lawrence,  in  the 
case  of  Jordaine  v.  Lashhrooke,  "  that  all  persons  are  admis- 
sible witnesses,  who  have  the  use  of  their  reason,  and  such 
religious  belief  as  to  feel  the  obligation  of  an  oath,  who  have 
not  been  convicted  of  any  infamous  crime,  and  who  are  not 
influenced  by  interest."  We  shall  now  proceed  to  examine 
separately  the  several  causes  of  incompetency,  which  have 
been  mentioned. 


*First  of  Incompetency  from  want  of  Understanding:  [  *4  1 

Persons  who  have  not  the  use  of  reason  are  from  their  in-  <^«"erai 
firmity  utterly  incapable  of  giving  evidence.  It  is  a  rule, 
also,  which  we  shall  have  occasion  to  consider  more  particu- 
larly in  treating  of  the  second  ground  of  incompetency,  that 
all  witnesses  must  be  examined  upon  oath ;  ( 1 )  upon  this 
principle,  persons  of  defective  or  disordered  intellect,  not  be- 
ing able  to  comprehend  the  nature  and  obligation  of  an  oath, 
ought  to  be  excluded  ;  and  even  if  the  form  of  an  oath  were 
administered  to  them,  no  reliance  could  be   placed  on  their 

(1)  Post,  Chap.  n. 


Of  Exclusion  of  Evidence 


[Ch.  1. 


Nutural  de- 
ficiency. 


Disordered 
intellect. 


[*5] 


Immaturity 
of  intellect. 

JChildren. 


Statements.     Such  persons  are,  therefore,  exckidcd  as  incom- 
petent witnesses. 

Incompetency  from  defect  of  miderstanding  may  arise, 
where  there  is  a  natural  deficiency  of  the  intellect,  as  in  the 
case  of  idiots :  or  Avherc  the  intellect  has  become  disordered, 
as  in  the  case  of  insane  persons  ;  or  where  the  intellect  is  im- 
mature, as  in  the  case  of  children. 

An  idiot  is  one  who,  from  his  nativity,  is  by  a  perpetual  in- 
firmity non  compos  mentis  ;  (2)  such  a  person  is  wholly  in- 
capable of  giving  evidence.  But  persons  born  deaf  and  dumb, 
(although  it  has  been  said  that  in  presumption  of  law  they 
are  to  be  considered  as  idiots,)  (3)  are  not  on  this  account 
incompetent :  and  if  it  appear,  that  they  have  sufficient  un- 
derstanding and  know  the  nature  of  an  oath,  they  may  give 
evidence  by  signs,  through  the  medium  of  an  interpreter  ;  (4) 
or  if  they  are  able  to  write,  their  testimony  will  be  taken  in 
writing,  as  the  more  certain  mode.  (5) 

Persons  whose  intellect  have  become  permanently  and  per- 
petually deranged,  are  incompetent ;  but  lunatics,  and  other 
persons  who  are  afflicted  with  occasional  fits  of  insanity,  al- 
though ^incompetent  while  under  the  influence  of  their  mala- 
dy, may  yet  be  witnesses  in  their  lucid  intervals,  if  it  be 
satisfactorily  sheAvn  that  they  have  sufficiently  recovered  the 
use  of  their  understandings.  (!)(«) 

There  is  no  precise  age  fixed,  at  which  children  are  exclu- 
ded from  giving  evidence.  At  one  time,  indeed,  their  age 
was  considered  as  the  criterion  of  their  competency,  and  it 
was  a  general  rule  that  none  could  be  admitted  under  the  age 
of  nine  years,  very  few  under  ten ;  (2)  which  in  some  ca- 
ses would  operate  to  deprive  them  of  the  protection  of  law 
against  acts  of  violence.  (3)  A  more  reasonable  rule  has  since 
been  adopted,  and  the  competency  of  children  is  now  regula- 
ted, not  by  their  age,  but  by  the  degree  of  understanding 
which  they  appear  to  possess.  In  Brazier's  case,  on  an  in- 
dictment for  assaulting  an  infant  five  years  old  with  intent  to 
ravish  her,  all  the  judges  agreed,  that  children  of  any  age 
might  be  examined  upon  oath,  if  they  were  capable  of  dis- 
tinguishing between  good  and  evil,  and  possessed  of  sufficient 


(2)  Co.  Lit.  247,  a. 

(3)  1  Hale.  P.  C.  34. 

(4)  Ruston's  case,  1  Leach,  Cr.  Ca. 
455. 

(5)  Moriisoa  v.  Lennard,   3  Car.  &. 
P.  127. 


(1)  Com.  Dig.  Testmoigne,  A.  1. 

(2)  R.  V.  Travers,  2  Stra.  700,  and 
cases  Lri  East,  P.  C.  442.  1  Hale,  P. 
C.  302.     2  Hale,  P.  C.  278. 

(3)  B.  N.  P.  293. 


(a)  Idiots,  lunatics,  and  madmen,  are  not  competent  witnesses,  and  this  must 
be  shown  to  the  court  by  proof,  like  any  other  charge  of  incompetency.  Living- 
ston c.  Kiersted,  10  .1.  R.  362.  The  defendant's  incapacity  to  contract,  may  ia 
general,  be  given  in  evidence  under  the  general  issue. 


luslruction. 


Cli.  1.]  from  Defect  of  Understanding.  i 

knowledge  of  the  nature  and  conseijuences  of  an  oath,  but  that 
they  could  not  in  any  case  be  examined  without  oath. (4)  (6) 
This  is  now  the  established  rule,  as  well  in  criminal,  as  in 
civil  cases,  and  it  applies  equally  to  capital  offences  as  to 
oflences  of  an  inferior  nature. 

According  to  this  rule  the  admissibility  of  children  de-  Keiii^ious 
pends  not  merely  upon  their  possessing  a  competent  degree 
of  understanding,  but  also,  in  part,  upon  their  having  receiv- 
ed a  certain  share  of  religious  instruction.  A  child  whose 
intellect  appears  to  be  in  other  respects  sufficient  to  enable  it 
to  give  useful  evdience,  may,  from  defect  of  religious  in- 
struction, be  wholly  unable  to  give  any  account  of  the  na- 
ture of  an  oath,  or  of  the  consequences  of  falsehood.  (5)  In 
criminal  cases,  where  a  child,  who  is  a  necessary  witness  for 
the  prosecution,  appears  not  ^sufficiently  to  understand  the  na-  [  *6  J 
ture  and  obligation  of  an  oath,  a  judge  may,  in  the  exercise 
of  his  discretion,  and  for  the  purposes  of  justice,  postpone  the 
trial,  in  order  that  the  child  may  be  in  the  mean  time  proper- 
ly instructed.  (1)  But  an  application  to  postpone  the  trial  up- 
on this  ground  ought  properly  to  be  made,  before  the  child  is 
examined  by  the  grand  jury ;  at  all  events  before  the  trial 
has  commenced  ;  for  if  the  jury  are  sworn,  and  the  prisoner 
is  put  upon  his  trial  before  the  incompetency  of  the  witness 
is  discovered,  the  judge  cannot  discharge  the  jury,  but  should 
direct  an  acquittal.  (2) 

When  a  child  from  defect  of  understanding  or  instruction 
is  unfit  to  be  sworn,  it  follows  as  a  necessary  consequence, 
that  any  account,  which  it  may  have  given  to  others,  of  the 
transaction,  ought  not  to  be  admitted.  On  an  indictment 
therefore  for  a  rape  on  a  cliild  five  years  old,  where  the  child 
was  not  examined,  but  an  account,  of  what  she  had  told  her 
mother  about  three  weeks  after  the  transaction,  was  given  in 
evidence  by  the  mother,  and  the  jury  convicted  the  prisoner, 
principally  as  was  supposed  on  that  evidence,  the  judges,  in 
a  case  reserved  for  their  opinion,  thought  the  evidence  clearly 

(4)  1  Leach,  C.  C.  199.     1  East,  P.     Williams,  7  Car.  &  P.  320. 

C.  443.     B.   N.   P.   293.     4  Bl.  Com.  (2)  R.  v.  Wade,  1  Ry.  &  Mo.  C.  C. 

214.  S6.     In   this   case  the  witness   was  an 

(5)  Cases  of  this  nature  might  with  adult,  possessed  of  suflicient  intellect, 
propriety  be  referred  to  the  head  of  in-  but  wholly  without  religious  instruction, 
competency  from  defect  of  religious  Qi^arf,  as  to  the  exercise  of  the  discre- 
prmciple,  which  is  the  subject  of  the  eii-  tion  of  the  court  in  postponing  the  trial 
suing  chapter.  in  a  case  of  this  nature. 

(1)1  Leach,  430,  n.     But  see  R.  v. 

(6)  If  an  infant  appear,  on  examination  of  the  court,  to  possess  a  sufficient 
sense  of  the  wickedness  and  danger  of  false  swearing,  he  may  be  sworn,  al- 
though of  never  so  tender  an  ago.  Commonwealth  v.  Ilutchinson,  10  Mas*. 
225. 


I  Of  Exclusion  of  Evidence,  <Sj'c.  [Ch.  1. 

inadiiiissible,  and  tlie  prisoner  was  accordingly  pardoned.  (3) 
With  regard  to  the  weight  and  effect  of  the  testimony  of 
children  Sir  W.  Blackstone  observes,  (4)  "  that  when  the 
evidence  of  children  is  admitted,  it  is  much  to  be  wished,  in 
order  to  render  the  evidence  credible,  that  there  should  be 
some  concurrent  testimony  of  time,  place,  and  circumstances, 
in  order  to  make  out  the  fact  ;  and  that  a  conviction  should 
not  be  grounded  on  the  unsupported  accusation  of  an  infant 
under  years  of  discretion."  In  many  cases,  undoubtedly,  the 
statements  of  children  are  to  be  received  with  great  caution  ; 
[  *7  ]  and  it  may  be  *observed,  the  preliminary  inquiry,  made  with 
the  view  of  ascertaining  their  competency,  is  not  always  of 
tiie  most  satisfactory  nature,  but  is  sometimes  of  such  a  des- 
cription, that  by  a  very  slight  discipline  of  the  memory,  a 
child  might  thus  be  made  to  appear  a  competent  witness. 
The  inquiry  is  usually  confined  to  the  ascertaining  of  the 
fact,  whether  the  child  has  a  conception  of  Divine  punish- 
ment being  a  consequence  of  falsehood  ;  it  seldom  extends 
so  far  as  to  ascertain  the  child's  notions  of  the  nature  of  an 
oath,  and  scarcely  ever  relates  to  the  legal  punishment  of 
perjury.  In  a  recent  case,  however,  it  has  been  held,  that 
the  effect  of  the  oath  on  the  conscience  of  a  child  should 
arise  from  religious  feelings  of  a  permanent  nature,  and  not 
merely  from  instructions  confined  to  the  nature  of  an  oath, 
which  have  been  communicated  with  reference  to  the  trial.(l) 
Independently  of  the  sanction  of  an  oath,  the  testimony 
of  children,  after  they  have  been  subjected  to  cross-examina- 
tion, is  often  entitled  to  as  much  credit  as  that  of  grown 
persons  ;  and  what  is  wanted  in  the  perfection  of  the  intel- 
lectual faculties,  is  sometimes  more  than  compensated  by  the 
absence  of  motives  to  deceive.  It  is  clear  that  a  person  may 
be  legally  convicted  upon  such  evidence  alone  and  unsupport- 
ed ;  and  whether  the  account  of  the  child  requires  to  be  cor- 
roborated in  any  part,  or  to  what  extent,  is  a  question  exclu- 
sively for  the  jury,  to  be  determined  by  them  on  a  review  of 
all  the  circumstances  of  the  case,  and  especially  of  the  man- 
ner in  which  the  evidence  of  the  child  has  been  given. 

(3)  R.  D.Tucker,  180S,  MS.     See  the  law  of  Scotland,  respecting  the  ad- 

also  R.  V.  Brazier,   1  East,   P.  C.  443,  missibiiity  of  infants,  12  How.  559,  n. 
1    Atk.   29.     Ch.  J.  Jeffrey's  examina-         (4)  4  Com.  214. 
tion  of  a  child  previonsly  to  being  sworn,         ( 1 )  R.  v.  Williams,  7  Car.  &  P.  320. 
9  How.  114S.     Mr.  Hume's  remarks  on 


CHAPTER  II. 

01'      EXAMINATION      UPON    OATH,       AND      OF      INCOMPETKNCY    FROM 
DEFECT    OF    RELIGIOUS    PRINCIPLE. 

It  is  an  established  rule,  that  all  witnesses  who  are  exam- 
ined upon  any  trial,  civil  or  criminal,  must  give  their  evi- 
dence under  the  sanction  of  an  oath.  This  rule  is  laid  down 
as  an  acknowledged  proposition,  by  some  of  our  earliest  wri- 
ters ;  (2)  and  it  appears  to  be  of  universal  application,  ex- 
cept in  the  few  cases  in  which  a  solemn  affirmation  has  been 
allowed  by  statute  in  lieu  of  an  oath.  No  exemption  from 
this  obligation  can  be  claimed  *in  consequence  of  the  rank  or  [  *8  ] 
station  of  a  witness.  A  peer  cannot  give  evidence  without 
being  sworn,  (1)  and  the  same  appears  to  be  the  case  in  re- 
gard to  the  King  himself.  (2)  The  rule  also  holds  even  in 
the  case  of  a  judge  (3),  or  juryman  (4),  who  happens  to 
be  cognizant  of  any  fact  material  to  be  communicated  in  the 
course  of  a  trial.  A  striking  exception  to  the  rule  formerly 
prevailed  in  the  case  of  witnesses  for  persons  accused  of  trea- 
son or  felony,  who  were  not  permitted  to  give  evidence  upon 
oath,  but  this  unreasonable  and  unjust  distinction  has  been 
long  since  abrogated.  (5)  At  one  time  it  was  thought  that  a 
child,  who  was  incapable  of  understanding  the  nature  of  an 
oath,  might  be  examined  without  being  sworn,  (6)  but  it  is 
now  settled,  as  we  have  seen  in  the  preceding  chapter,  that 
the  statement  of  a  child  cannot  be  received  except  upon  an 
oath,  and  that  where  the  child  is  incapable  of  understanding 
the  nature  and  obligation  of  an  oath,  its  testimony  will  be 
rejected.  (7) 

An  examination  upon  oath  implies,  that  the  witness  should  What  im- 
go  through  a  ceremony  of  a  particular  import ;    and  also  that  am'ination*' 
he   should  acknowledge  the  efficacy  of  that  ceremony  as  an  import  of 
obligation  to  speak  the  truth.     It  has  been  said  that,  by  tak-  oaih. 
ing  an  oath,  a  witness  makes  a  formal    and  solemn  appeal  to 

^2)  Sheppard's  Abridg.  Tryal.  (3)   Kel.  12,  Trial  o(  the  Regicides. 

(1)  Lord  Shaftesbury  «.  L.  Digby,  8  See  also  5  How.  St.  Tr.  1181,  n.  7 
Keb.  631.  R.  v.  Lord  Preston,  1  Salk.  How.  St.  Tr.  874,  1458.  11  How.  459. 
278.  (4)  Bennett  v.  Hundred  of  Hertford, 

(2)  2  Rol.  Ab.  686.  In  Abigny  u.  Sty.  233.  Fitzjames  v.  Moys,  1  Sid. 
Cliflord,  Hob.  213,  King  James  the  133.  Kitchen  w.  Manwaring,  cit.  Andr. 
First  certified  to  the  chancellor  under  his  321,  and  see  R.  v.  Sutton,  4  M.  &  S. 
sign  manual,  the  substance  of  the  prom-  532,  537,  n.  6  How.  St.  Tr.  1612,  n. 
ise  made  by  the  defendant  to  the  King,  18  St.  Tr.  123. 

and  the  certificate  was  admitted  without  (5)  See  stat.  7  W.  3,  c.  3.     Stat.  1 

objection.     But  Willes,  C.  B.  (in  Omi-  Ann.  Bt.   2,  c.  9.     See  3  Inst.  79.     2 

chund  V.  Barker,   Willea'   Rep.  550,)  Hale,  P.  C.  283.     4  Bl.  Com.  359. 

states  that,  except  in  the  preceding  case,  (6)   1  Hale,  P.  C.  634. 

the    King's   certificate,    under    his    sign  (7)  ^nte,    p.    5.     Brazier's    case,  1 

manual,  has  always  been  refused.  Leacli,  C.  C.  237.     1  East  P.  C.  443. 


Of  Examination  from  Defect  of 


[Ch.  2. 


Form  of 
ouih. 

f*9j 


f*10j 


the  Su]»rcmc  Being  for  the  truth  of  the  evidence  which  he  is 
;il)ont  to  give,  and  imprecates  the  Divine  vengeance  on  his 
head,  if  what  he  shall  say  should  be  false.  (8) 

*The  particular  form  or  ceremony  of  administering  an  oath 
is  quite  distinct  from  the  substance  of  the  oath  itself.  The 
substance  of  the  oath  must  always  be  the  same,  though  the 
form,  in  which  an  oath  is  taken,  varies  indifferent  countries, 
and  according  to  the  different  forms  of  religion.  In  Eng- 
land, the  customary  form  in  which  an  oath  is  administered, 
consists,  as  is  well  known,  in  calling  upon  the  witness  to  de- 
clare the  truth,  as  he  may  be  helped  by  God,  (1)  and  requir- 
ing him  to  touch  Avith  his  right  hand,  and  to  kiss  the  four 
Gospels.  If  the  same  form  of  oath  were  required  in  all  cases, 
without  reference  to  the  religious  opinions  of  witnesses,  some 
might  refuse  to  comply  with  it  *from  conscientious  scruples, 
and  their  evidence  would  thus  be  excluded  ;  while  others 
might  attach  no  binding  force  to  the  prescribed  form,  and  the 
object  of  the  law  in  requiring  a  religious  sanction  would  be 
entirely  defeated.  The  rule  of  our  law,  therefore,  is,  that 
witnesses  may  be  sworn  according  to  the  peculiar  ceremonies 
of  their  own  religion,  or  in  such  a  manner  as  they  may  con- 


(S)  Per  Lord  Hardvvicke,  1  Atk. 
49.  For  the  definition  of  an  oath  by 
our  old  writers,  Bracton,  Britton,  Fleta, 
and  others,  see  1  Atk.  22.  By  Sir  E. 
Coke,  and  some  other  writers,  an  oath 
is  often  confounded  with  the  form  in 
which  it  is  usually  administered. 

(1)  The  expression  "  So  help  you 
God,"  has  been  objected  to  as  obscure, 
and  as  referring  only  to  a  denial  of  bles- 
sings without  any  imprecation  of  ven- 
geance ;  and  it  has  been  thought,  that 
the  oath  would  be  more  impressive,  if 
the  form  of  words  were  repeated  by  the 
witness  himself  in  the  first  person.  It 
may  also  be  observed,  the  terms  of  the 
oath  appear  to  imply  thai  the  witness 
will  incur  greater  danger  of  losing  the 
Divine  favor  by  giving  false  testimony, 
than  by  simple  falsehood  :  and  that  the 
eflect  of  this  may  be  to  diminish  in  his 
mind,  in  some  degree,  the  force  of  the 
general  obligation  to  adhere  to  truth  oa 
all  occasions.  These  observations,  how- 
ever, apply  in  an  equal  degree  to  all  ju- 
dicial oaths,  in  whatever  form  adminis- 
tered; and  the  importance  of  endeavour- 
ing to  enforce  judicial  investigations,  in  a 
more  strict  and  uniform  attention  to 
truth,  than  is  observed  in  the  common 
transactions  of  life,  is  obvious.  By  the 
common  consent  of  almost  all  nations, 
an  oath  has  been  adopted  as  one  of  the 
means  of  accomplishing  this  object.  If 
we  look  to  the  origin  of  oaths,  we  shall 


trace  them  to  a  very  remote  antiquity> 
Even  in  times  of  ignorance  and  barba- 
rism, they  were  used  in  common  with  a 
number  of  other  direct  appeals  to  the 
Deity,  which,  in  consequence  of  the 
progress  of  knowledge  and  civihzation, 
have  been  long  since  laid  aside.  In 
those  early  times,  oaths  were  in  constant 
use,  not  only  in  judicial  investigations, 
but  upon  every  occasion  of  the  least  de- 
gree of  importance,  and  as  they  were 
more  frequently  used,  they  were  more 
grossly  violated.  This  very  lax  applica- 
tion of  oaths  led  to  a  still  further  abuse, 
by  the  indiscriminate  introduction  of 
them  into  ordinary  language.  We  have 
at  length  become  sensible  of  the  impro- 
priety of  such  unnecessary  and  profane 
appeals  to  the  Deity.  Official  and  ex- 
tra-judicial oaths  are  almost  entirely 
abolished  by  recent  statutes  ;  more  es- 
pecially by  the  late  act  of  the  5  &  6  W. 
4,  c.  62.  Although  the  judicial  oath  has, 
in  consequence  of  these  improvements, 
become  more  impressive,  from  its  com- 
parative unfrequency  of  occurrence,  and 
therefore  better  adapted  to  answer  the 
object  for  which  it  is  administered,  yet 
its  propriety  and  advantages  have  been 
of  late  frequently  called  in  question,  and 
many  have  considered,  that  it  might  be 
safely  dispensed  with.  On  this  subject, 
see  Mr.  Erskine's  remarks  on  Williams' 
trial,  26  How.  665. 


Religious  Principle.  9 

sider  binding  on  their  consciences,  Jews  have  accordingly 
been  sworn  in  our  Courts  from  a  very  early  period,  on  the 
Pentateuch,  and  they  take  the  oath  with  the  head  covered,  (1) 
A  Mahometan  is  sworn  upon  the  Koran.  (2)  The  de- 
position of  a  Gentoo  has  been  received,  who  touched  with 
his  hand  the  foot  of  a  Bramin.  (3)  A  Scotch  covenanter, 
and  a  member  of  the  Kirk,  have  been  allowed  to  take  the 
oath,  by  holding  up  their  hands  without  kissing  the  book  ;  (4) 
and  upon  the  same  principle  all  persons  may  be  sworn  ac- 
cording to  the  ceremony  which  is  sanctioned  by  their  partic- 
ular religion  or  sect.  (5)  Whatever  be  the  form,  the  mean- 
ing of  the  oath  is  the  same.  It  is  an  appeal  to  God,  calling 
upon  him  to  witness  what  we  say,and  invoking  his  vengeance, 
if  what  we  say  be  false.  (6) 

The  same  indulgence,  that  is  allowed  in  the  case  of  diifer- 
ent  religions  and  sects  of  religion,  has  also  been  extended  to 
the  conscientious  scruples  of  individuals,  who  have  objected 
to  be  sworn  in  the  manner  usually  adopted  by  persons  of  their 
own  religion  or  sect.  Thus  in  an  old  case,  where  a  witness, 
who  was  Vice  Chancellor  of  Oxford,  refused  to  be  sworn  in 
the  usual  form  by  laying  his  right  hand  on  the  book  and  kiss- 
ing it,  Glin,  C.  J.  ruled,  that  he  might  be  sworn  by  having 
the  book  laid  open  before  him  and  holding  up  his  right 
hand.  (7)  "  In  my  opinion,"  said  the  Chief  Justice,  ^'he 
has  taken  as  strong  an  oath  as  any  other  witness."  And  in  a 
late  case,  a  witness  who  professed  Christianity,  but  objected 
to  be  sworn  on  the  *Gospels,  was  allowed  to  be  sworn  on  the  f  *11  1 
Old  Testament,  on  his  stating  that  he  considered  an  oath  so 
administered  to  be  binding  on  his  conscience.  (1)  A  Jew 
who  has  made  no  formal  renunciation  of  Judaism,  but  pro- 
fesses himself  to  be  a  Christian,  may  be  sworn  on  the  Gos- 
pels. (2)  And  in  a  case  where  a  new  trial  was  moved  for, 
on  the  ground  that  a  witness,  who  had  been  sworn  on  the 
Gospels  in  the  usual  manner,  had  since  been  discovered  to  be- 
a  Jew,  the  Court  of  Common  Pleas  refused  the  rule,  and  were 
unanimously  of  opinion,  that  the  oath  taken  was  binding  on 
the  witness,  both  as  a  moral  and  religious  sanction,  (o) 

(1)  1  Aik.  40,  42.  VVille?,  543.  f5)  Omichund  v.  Barker,  1  Atk.  21. 
Cowp.  389.  (6)   rorinu  jusjurandl  verbis  differt,  re 

(2)  Morgan's  case,  1  Leacli,  C.  C.  convenit  ;  liuno  cnim  scnsum  habere de- 
61,  per  field,  J.,  delivering  the  opinion  bet,  ut  Deus  invocelur.  Grotius,  L.  2. 
of  all  liie  judges.     Cowp.  390.     Faclii-  c.  1.1,  s.  10. 

na  V.  Sabine,  2  Stra.  1104.  (7)   Dulton  v.  Colt,  2.  Sid.  G. 

(3)  See  Orniehund  i).  15arker,  1  Atk.  (I)  lldmonds  u.  Howe,  Ily.  &  IMo, 
21.     In  li.  V.  Alsicy,  O.  B.  Lep.  1S04.     N.  P.  C.  77. 

Peake's  Evid.    138,  5th  edit.)  a  Chinese         (2)   R.   v.   Gilhain,   1   Esp.   N.  P.  C. 

was  sworn  by  da>ihiMg  ri  saucer   on   the     285. 

ground  after  he  had  concluded  the  oath.  (3)   Sells  «.  Iloare,  3  Bro.  &  B.  232. 

(4)  Per  Gould,  .).,  in  Mildrono'.s  cnse, 
1  Leach,  C.  C.  459.  Mee  v.  Rcid,  I 
Peake,  N.  P.  C.  22. 

2 


IQ  Of  Examination  from  Defect  of  [Cli.  2. 

But  besides  perfonning  a  ceremony  of  the  importance  just 
described,  the  law  requires,  tliat  the  witness  sliould  acknowl- 
edge the  efKcacy  of  such  a  ceremony  as  an  obhgation  to  speak 
the  truth.     It  is  therefore  necessary,  in  order  that  a  witness's 

Religious     testimony  should  be  received,  that  he  should  believe  in  the 

belief.         existence  of  a  God,  by  whom  truth  is  enjoined  and  falsehood 

punished.     Without  such  a  belief,   one  sanction,   which  the 

,.  .         law  regards  as  a  material  security  for  the  truth  of  evidence, 

prmfi'i'ie*  that  of  the  fear  of  Divine  punishment  invoked  by  the  witness 
upon  himself,  is  wanting.  It  is  not  sufficient,  that  the  wit- 
ness believes  himself  bound  to  speak  the  truth  from  a  regard 
to  character  or  to  the  common  interests  of  society,  or  from  a 
fear  of  the  punishment  which  the  law  inflicts  upon  persons 
guilty  of  perjury.  (4)  Such  motives  have  indeed  their  influ- 
ence, but  they  are  not  considered  asafiibrding  a  sufficient  safe- 
guard for  the  strict  observance  of  truth :  our  law,  in  common 
with  the  law  of  most  civilized  countries,  requires  the  addition- 
al security  afforded  by  the  religious  sanction  implied  by  an 
oath,  and,  as  a  necessary  consequence,  rejects  all  witnesses 
who  are  incapable  of  giving  this  security. 

Atheists,  therefore,  and  such  infidels,  as  possess  not  any  re- 
ligion that  can  bind  their  consciences  to  speak  the  truth,  are 
excluded  from  being  witnesses.  {5){a)     Doubts  formerly  exis- 

r  #12  1  ted  with  *respect  to  Jews,  and  the  inhabitants  of  countries  pro- 
fessing religions  different  from  Christianity.  Lord  Coke  says 
generally,  that  it  is  an  objection  to  a  witness  if  he  be  an  infi- 
del, (1)  under  which  denomination  he  intended  to  comprise 
Jews  as  well  as  Heathens.  (2)  And  Serjt.  Hawkins  thought, 
that  a  witness  who  believed  in  neither  the  New  nor  the  Old 
Testament,  was  incompetent.  (3)  But  Lord  Hale  was  of  a 
different  opinion,  and  strongly  points  out  the  unreasonableness 
of  excluding   indiscriminately  all   heathens  from  giving   evi- 

(4)  Ruston'9   case,   1  Leach,  C.  C.         (1)  Co.  Lit.  6,  h. 

455.  (2)  2   Inst.    506.      8  Inst.   165.     1 

(5)  Bui.  N.  P.  292.     1  Atk.  40,  45,     Atk.  43.     Willes,  541. 

48.     Gilb.  Ev.  129.  (3)  Hawk.  P.  C.  b.  2,  c.  46,  s.  143. 

(«)  He  who  openly  nnd  deliberately  avows,  that  he  has  no  belief  in  the  exist- 
ence of  a  (iod,  fnrnislies  clear  and  satisfactory  evidence  again.st  himself  that  he 
is  incjip:il)lu  of  being  bound  by  any  religious  tie,  to  speak  the  truth,  and  is  un- 
worthy of  credit  in  a  court  of  justice.  4  N.  H.  R.  444  ;  Per  Peck,  J.  1  Yerg. 
R.  224  ;  IS   J.  R.  98  ;  5  Mason,  16. 

.\  person  who  denies  all  punishment  after  this  life,  and  who  believes  that 
men  will  be  punished  in  this  life  for  their  sins,  but  immediately  after  death  be 
made  happy,  is  not  a  competent  witness.  Alwood  tJ.Welton,  7,  Conn.  N.  66 — 
I  )ae:gott.  The  doctrine  as  now  established  in  this  country  and  in  England,  is, 
that  if  a  person  believes  in  a  God,  the  avenger  of  falsehood,  in  a  future  state  of 
rewards  and  punishments,  ho  may  be  a  witness,  and  not  otherwise,  id  ;  Jackson 
V.  Gridley,  18  J.  R.  98  ;  Curtis  v.  Strong,  4  Day  51. 

In  liunscom  v.  Hunscom,  15  Mass.  184,  disbelief  in  a  future  state  of  existence 
was  said  to  be  an  objeclion  to  the  credit  only  and  not  to  the  competency  of  the 
witness.     See  also  Noble  v.  The  People,  1  Breese's  (Illi.)  R.  29. 


Cli.  2.]  Religious   Principle.  11 

(ience.  (4)  All  doubts  on  this  subject  have  long  since  been 
set  at  rest,  and  it  now  may  be  considered  as  an  established 
rule,  that  not  only  Jews,  but  infidels  of  any  country,  believing 
in  a  God  who  enjoins  truth  and  punishes  falsehood,  ought  to 
be  received  as  witnesses;  (5)  and  they  are  to  be  sworn,  as 
we  have  already  seen,  according  to  the  form  which  is  author- 
ized by  their  country  or  religion. 

The  only  means  of  ascertaining  the  competency  of  a  wit-  Mode  of  as- 
ness,  with  reference  to  religious  principle,  is  by  examining  reiiscious 
the  party  himself.  The  proper  mode  of  examination  for  this  ''^''*^'^- 
purpose,  it  is  said,  is  not  to  question  the  witness  as  to  his  par- 
ticular opinions,  but  to  inquire  generally,  whether  he  believes 
in  the  existence  of  a  God  and  in  a  future  state.  (6)  And  in 
a  case  before  Duller,  J.,  where  a  witness,  who  had  been  sworn 
in  the  usual  way,  was  asked,  whether  he  believed  in  the  Gos- 
pels on  which  he  had  been  sworn,  the  question  is  said  to  have 
been  overruled.  But  although  a  witness  may  not  be  ques- 
tioned as  to  his  particular  religious  opinions,  he  may  be  asked, 
whether  he  considers  the  form  of  administering  the  oath  to  be 
such  as  will  be  binding  on  his  conscience.  The  proper  time 
for  putting  this  question  is  before  the  witness  has  been  sworn  ; 
but  if  the  question  has  been  inadvertently  omitted,  it  may  be 
asked  afterwards.  (7)  If,  in  answer,  the  witness  state,  that 
he  considers  the  oath  *binding,  he  cannot  be  further  asked,  [  *V^  ] 
whether  there  be  any  other  mode  of  swearing  more  binding 
on  his  conscience  than  that  which  has  been  used.  For  the 
witness,  in  stating  that  he  considers  the  oath  to  be  binding  on 
his  conscience,  affirms,  in  effect,  that  in  taking  that  oath  he 
has  called  God  to  witness,  that  what  he  shall  say  will  be  the 
truth,  and  that  he  has  imprecated  the  Divine  vengeance  on 
his  head,  if  what  he  shall  afterwards  say  should  be  false  ;  and 
having  done  that,  it  is  perfectly  irrelevant  and  unnecessary  to 
ask  any  further  questions.  ( 1 ) 

The  evidence  of  (Quakers,  and   the  members  of  other  sects  ,^^f™'^li°" 
who  refused  to  take  a  formal  oath  in  any  shape,  was  for  along  oath— Qua- 
time  held  inadmissible.     By  the  stat.  of  the  7  &  S  W.  3,  c.  Moravians. 
34,  the  solemn  affirmation  of  Q,uakers  was  admitted  to  have 
the  same  effect  as  an  oath  in  civil  cases,  but   they  continued 
to  be  excluded  from  giving  evidence  in  criminal  cases,  until 
a  very  recent  period.     This  disability  has  now  been  entirely 
removed,  by  stat.   9  Geo.  4,  c.   32,  by  which  Q-uakers  and 
Moravians  are   allowed  to  give   evidence  upon    their  solemn 

(4)  2  Male,  P.  f'.  279.  does  not  believe  in  a  future  sinte,    may 

(5)  Hee  Oiriicliund  v.  Barl<er,  1  AtU.  be  examined  upon  oath.      I3y  W'iiles,  C". 
2!.      1  Wils.  84.  S.  C.  Willea,  538,  S.  B.  Oniichiuid  v.  Harker,  W  illcs,  550. 
C  (1)    Ile.sniulion  of  tlie  Judges    in    tlie 

(6)  I',  seems,  however,  that  an  infidel  Queen's  case,  2  I'lo.  &  Hin;j;.  284. 
who  lieiiuvos  in  a  (iod,  und  that  lut  will  (I )    I5y  Lord  Tendoiduii,  i".  .1.,  2  Br, 
reward  and  punish  hitn  in  this  world,  but  &  I'ing.  284. 


J2  Of  Examinution  from  Defect,  Sj'c.  Ch.  2.] 

affirmation  in  all  cases,  criminal  as  well  as  civil.  And  by  a 
later  enactment  (2)  their  affirmation  is  to  be  ol"  the  same 
force  and  efl'ect  as  an  oath  in  the  usual  form,  in  all  cases  when 
an  oath  is  by  law  required.  By  another  statute  (3)  a  similar 
provision  is  made  in  favor  of  a  religious  sect  called  separa- 
tists. 

It  was  formerly  laid  down  by  writers  on  the  law  of  evi- 
dence, on  the  authority  of  a  dictum  of  Sir  E.  Coke,  (4)  that 
excommunicated  persons  were  not  competent  witnes- 
ses, on  the  ground  that  persons  excluded  from  the 
Chiu'ch  could  not  be  under  the  influence  of  any  reli- 
gion. But  this  species  of  disability,  if  it  ever  existed,  has 
been  entirely  removed  by  the  stat.  58  Geo.  3,  c.  127,  s.  2,  3, 
which  enacted,  that  persons  excommunicated  shall  in  no  case 
incur  any  civil  penalty  or  disability. 


[*!'!]  *CHAPTER  III. 

OF    INCOMPETENCY  FROM    INFAMY    OF   CHARACTER. 

A  third  cause  of  incompetency  is  infamy  of  character,  pro- 
Gencrai       cccding  from  conviction  of  certain  offences. 
'"  ''"■  The  conviction  of  an  infamous  crime,  followed  by  judg- 

ment, disqualifies  a  person  from  giving  evidence  in  our  courts 
of  justice  ;  (1)  and  persons  rejected  for  this  cause,  are  said  to 
be  incompetent  on  account  of  the  infamy  of  their  character. 
hJuveen""-  ^^^^rc  is  a  distinction  between  infamy  of  character  in  the  or- 
sai  ami      diuary  sense  of  the  expression,  and  that  legal  infamy  which 
in^of  char-  results  froui  the  sentence  of  a  court  of  justice.     "  If,"  says 
acter.         gji-  \y.  Scott,  (2)  "  a  man  is  stigmatized  by  public  fame  only, 
it  affects  the  credit  of  his  testimony,  but  not  his  admission  to 
the  formal  character  of  a  witness,"     And  it  frequently  hap- 
pens, that  a  witness  is  suffered  to  give  evidence,  because  not 
absolutely  disqualified  by  the  rule  of  law,  though  he  may  be  far 
lower,  in  point  of  credit  and  real  character,  than  another  who 
is  excluded  as  incompetent.  (3)     Writers  on  the  law  of  evi- 
dence always  distinguish  between  the  infamia  juris,  and  the 

(2)  3  &  4  W.  4,  c.  49.  (2)   2  Dods.    188,   case  of   Ville   de 

(3)  3  &  4  W.  4,  c.  82.  Varsovie. 

(4)  2  Bulstr.  155.  Att.  Gen.  v.  (3)  Tliis  occasional  inconsistency  is 
Griffith.  See  B.  N.  P.  292.  Gi!b.  tlio  unavoidable  consequence  of  a  lixed 
Evid.  146,  (3d  edit.)  general    rule    of  exclusion,   and   oC  tho 

(1)  Uur   earliest    writers    notice   this     well  known  principle  of  our    law,    that 
cause  of  disqualification.     And  the  role     every  man  is  presumed  to  he  innocent  of 
of  the  Konian  law  was  similar,  "  Publi-     a  crime  until  his  guilt  has  been  establish- 
co  judicio  diminati   tt  non   in   integrum     ed  in  a  court  of  justice, 
restituti,  admittendi  non  sunt  ad  testimo- 
iiii  fidem."     Dig.  1.  22,  tit.  6,  de  Testi- 
bu3,  art.  3,  8.  5. 


Ch.  3.]   Incompetency  from  Infamy  of  Character^  ^c.  13 

ififcmiia  facti  ;  the  former  of  which  may  destroy  the  credibil- 
ity of  a  witness,  but  the  latter  only  can  effect  his  competency. 

*The  principle  upon  which  this  rule  of  exclusion  is  founded,  [  *15  ] 
has  given  rise  to  some  difference  of  opinion,  and  there  are  not  I'rinpiHe  of 
wanting  authorities,  which  appear  to  rest  the  incompetency  of 
such  persons,  as  witnesses,  on  the  ground  of  punishment  for 
the  offence  ;  but  it  is  clear  that  this  cannot  be  the  correct  prin- 
ciple, for  the  testimony  of  a  witness  is  the  privilege  of  the 
party  who  requires  it,  or  of  the  public,  and  not  of  the  witness 
himself.  Another  ground,  upon  which  this  rule  appears  to 
have  been  established,  is,  that  the  testimony  of  persons  con- 
victed of  infamous  crimes  is  devoid  of  all  presumption  of 
credit,  and  would  therefore  be  more  likely  to  mislead  than 
to  assist  in  the  investigation  of  truth  in  Courts  of  Justice. 
Thus,  Sir  W.  Scott,  in  the  judgment  from  which  a  quotation 
has  been  already  made,  observes  that  ••'the  law  considers  the 
commission  of  a  crime  of  this  nature  to  imply  such  a  dereliction 
of  moral  principle  on  the  part  of  the  witness,  as  carries  with  it 
the  conclusion,  that  he  would  entirely  disregard  the  obligation 
of  an  oath."  (1)  And  C.  B.  Gilbert  observes  upon  the  same 
subject,  that  "  the  producing  such  a  witness  is  perfectly 
ineffectual,  because  the  credit  of  his  oath  is  overbalanced  by 
the  stain  of  his  iniquity."  (2)  It  may  be  objected  against  the 
propriety  of  this  reasoning,  that  it  does  not  follow,  because  the  Piopiioiyor 
moral  principle  of  a  witness  has,  upon  a  former  occasion,  proved 
too  weak  to  resist  a  particular  temptation  of  self  interest, 
that  therefore  the  witness  ought  to  be  accounted  Avhol- 
ly  undeserving  of  credit,  when  there  may  be  no  temptation 
to  lead  him  astray,  or  where  it  may  be  reasonably  supposed 
that  the  oath  he  takes,  and  the  fear  of  the  temporal  pun- 
ishment annexed  to  perjury,  will  not  be  without  influence 
in  causing  him  to  adhere  to  the  truth.  (3)     It   may  also  be 

(1)  2  Dod-!.  Rep.  18R.  who  has  been  convicted  of  perjury,  and 

(2)  (iilb.  Evid.  143,  (4th  edit.);  and  one  who  has  not  been  convicted,  but  ad- 
see  per  AVilles,  C.  J.  I'urdock  v.  Mack-  niit  having  conunitted  tiie  ofl'ence." 
inder,  Wilies,  667.  Yet,  as  we  shall  presently  see, the  one  is  a 

(;5)   In    K.   V.  Teal,    11    Enst,    ."^ll.  coiupetent  and  the  other  an  incompetent 

Lord    Ellenborough   says,    '*  Though    a  witness.     It  is  also  difficult  to  conceive, 

person  may  be  proved  on  his  own  shew-  with  reference  to  this  principle,  vviiy  tho 

inf^,  or  by  other  evidence  to  have  fore-  suH'ering  of  the  punishment  awarded  by 

Kworri   himself  as  to  a  particular  fact,  it  law   for  the  otfence,  should  occasion   a 

doe*  not  follow  that  he  can  never  after-  restoration  of  competency  in    these    ca- 

wards   feel    the   obligation  of  an    oath,  sea  ;    for  although  the  endurance  of  the 

And  in  Gilbert.  Evid.  139,  it  is  said  that  punishment  may  satisfy  the  ends  of  pub- 

"  if  the  motlierof  a  bastard  child  charge  lie  justice,  it  is  not  easy  to  e.\plain,  how 

two  persons,  she  loses  her  credibility  ;"  it  can  operate  to  improve  the  character 

"  which,"  says  Lord  Ellenliorough,  "  is  and  credit  of  a  convict.       But    liie    true 

observed  with  reference  to  the  distinction  souice  of  many  of  these  apparent  incon- 

between    crtdibility  and  conipetenry.  sistencies  in  the  law  of  cvidDncc  is  to  be 

I'ut    if    incompetency    from    infamy    of  found  in  the  disinclination  of  iho   coiiita 

character  proceeds  on   the  ground  of  an  in  modern  times  to  shut  out  evidence  un- 

cntiro  want  of  credibility,   it  la  not  easy  necessarily, and  in  their  endeavours  to  re- 

to  understand,  why  there  should  bo  any  strain  as  much  ad  possiblo    Iho  old  ruin* 

diotinctior»  between  tiio  case  of  a  wilnc5t>,  of  exclusion. 


exciuMuu. 


14  Incompetennj  from  Tnfymy  of  Character,  SjW       (Cli  3. 

remarked,  that  tliere  is  tho  less  danger  in  admitting  tliis  testi- 
mony, because  the  very  circumstance  of  the  conviction  oper- 
ates as  a  safeguard,  by  forewarning  the  jury  to  be  cautious  in 
[  *10  ]  receiving  *the  statements  of  the  witness.  The  distinction  be- 
tween the  oflences,  tlie  conviction  for  which  does,  or  does  not, 
disc[uahfy  a  witness,  is  often  purely  technical  ;  whilst  the 
modes,  by  which  the  competency  of  infamous  witnesses  may 
be  restored,  shew  that  the  objection  to  such  witnesses,  which 
is  capable  of  being  removed  by  circumstances  wholly  immate- 
rial to  their  credit,  is  not  of  a  very  substantial  nature. 

It  is  to  be  observed  that,  in  practice,  witnesses  are  rarely 
rejected  on  the  ground  of  infamy, — in  consequence  of  the  diffi- 
culty of  establishing  the  incompetency  by  producing  formal 
evidence  of  the  conviction  and  judgment,  especially  where 
there  is  no  previous  notice  that  the  particular  witness  is  to  be 
produced  ;  besides,  that  there  are  various  modes  by  which 
witnesses,  who  have  incurred  this  disqualification,  may  be 
restored  to  competency.  The  cross-examination  of  the  wit- 
ness, as  to  the  fact  of  his  previous  conviction,  generally  pro- 
duces all  the  effect  of  discrediting  him,  which  can  properly  be 
desired. 

In  treating  of  the  subject  of  incompetency  from  infamy,  it 
is  proposed,  in  the  present  chapter,  to  consider  what  offences 
incapacitate  ;  what  is  the  effect  and  extent  of  the  incapacity  ; 
how  incompetency  from  infamy  of  character  is  to  be  proved ; 
and  how  a  witness  who  has  incurred  this  disability,  may  be 
restored  to  competency.  The  next  chapter  will  treat  of  the 
evidence  of  accomplices,  informei's,  and  self-discrediting  wit- 
nesses, a  subject,  connected  with  this  branch  of  the  law  of 
evidence,  which,  from  its  importance,  appears  to  deserve  a 
separate  consideration. 

[  *17  J  *1.    What  Offences  Incapacitate. 

What  ofT.-ii-      There  are  many  offences  which  our  law  considers   such 
ciiatel  ^''*  blemishes  on  the  moral  character,  as  to  incapacitate  the  party 
convicted  from  giving  evidence.      Of  this  kind  are  treason, 
'^'d^fT      P^oeniunire,  and  the  whole  class  of  offences  which  come  under 
■  ■  the  denomination  of  felony.  ( 1 )  Petty  larceny  was  formerly  an 
exception  to  the  rule  which  disqualifies  for  conviction  of  felo- 
ny 5  (2)  but  the  distinction  between  grand  and  petty  larceny 
having  been  abolished,  and  the  latter  being  made  subject  to 
all  the  incidents  of  the  former,  (3)  that  exception  now  no  lon- 
ger exists. 

( 1 )  Co.  Lit.  fi,  b.    Com.  Dig.  Testm.     see  2  II.  P.  C.  277.     Pendock  v.  Mack- 
A.  5.     2  II.  P.  C.  277.     Fortesc.  Rep.     iiider,  VVilles,  667. 

209.     Jones   v.    Mason,    2    Stra.    833.  (3)   Stat.  7  &  8    Geo.  4,  c.  29,  s.  2. 

Wali<er  v.  Kearney,  2  Stra.  1148.  The  consequence  of  iocapacitating  wit- 

(2)  Stat.   31  Geo.   3,  c.   35.     Before  nesses  was  probably  not  contemplated  by 
this    statute   petty   larceny   disqualified,  the  legislature. 


Ch.  3.  ]      Incompetency  from  Infamy  of  Characlcr,  ^c.  15 

It  has  been  generally  laid  down  by  writers  on  the  law  of  9'^]"'*" 
evidence,  that  every  species  of  the  crimen  falsi  renders  the 
party  convicted  an  incompetent  witness.  (4)      The  term  cri- 
men falsi  is  one  which  has  been   imported  from  the  Roman 
law  into  ours,  and  the  precise  extent  of  the  signification,  which 
it  has  received  in  our  law  appears  to  be  involved  in  some  de- 
gree of  uncertainty.     It  is  clear  that  a  conviction  for  forgery  Forgery- 
will  disqualify  ;  (5)  as  will  also  all  offences  tending  to  pervert  perjuiy. 
the  public  administration  of  justice,  by  the   introduction  of 
falsehood  and  fraud.     Of  this  nature  are  perjury,  and  subor- 
nation of    perjury;    attaint  of    false  verdict;  (6)  bribing  a 
witness  to  absent  himself,  in  order  that  he  may  not  give  evi-  Bnhing  a 

'  .    °  ,         witness. 

dence  ;  (7)  conspiring  to  procure  the  absence  of  a  witness  ;  (8) 
conspiring  to  accuse  another  person  of  a  capital  offence  ;  (9) 
barretry  ;  (10)  and  other  offences  of  a  similar  character. 
But  it  does  not  appear,  that  every  offence,  which  involves  the 
charge  of  falsehood  or  fraud,  will  render  a  witness  incompe-  2!t'raud^*^^ 
tent ;  and  in  a  modern  case  in  the  Admiralty  *Court,  which  r  *iq  ^ 
underwent  much  discussion.  Sir  W.  Scott  determined,  on  great 
consideration,  that  a  conviction  for  a  conspiracy  to  commit  a 
fraud,  in  raising  the  price  of  the  funds  by  false  reports,  would 
not  render  an  affidavit  of  the  convicted  party  inadmissible.  (1) 
Lord  Tenterden  also  appears  to  have  entertained  the  same 
opinion  in  a  subsequent  case,  which  occurred  at  Nisi  Prius.(2) 

A  conviction  for  keeping  a  public  gaming  house  has  been  Naming, 
thought  not  to  render  a  witness  incompetent.  (3)  But  it  seems 
that  a  person  who  has  been  convicted  under  the  9th  Ann.  c. 
14,  s.  5,  of  winning  at  the  games  mentioned  in  that  statute, 
by  fraud  or  ill  practice,  would  be  incapacitated  ;  for  the  stat- 
ute expressly  enacts,  that  the  party  convicted,  shall  be  deemed 
infamous  ;  and  one  of  the  legal  consequences  of  infamy  is  in- 
capacity to  give  evidence.  (4)  (a) 

Judgment  of  outlawry  for  treason  or  felony  has  the  same  Outlawry, 
effect  as  judgment  after  a  verdict  or  confession,  (5)  and  it 

(4)  Bnl.  N.  p.  291.  Cilb.  Evid.  Dig.  Testin.  A.  5.  See  R.  «.  Crossby, 
141.     Co.  Lit.  6,  &,  n.  1,  (Ilurg.  edit.)  2  Leach,  C.  C.  496. 

(5)  2  Hale  P.  C.  277.  Com.  Dig.  (10)  R.  u.  Ford,  2  Salk,  690.  B. 
Testrn.  A.  5.     Co,  Lit.  6,  b.  B.  N.  P.  N.  P.  292. 

291.  (I)  Case  of  Ville   de   Varsovie,    2 

(6)  See  autlioritics  cited,  n.  h.stipra.  Dodi.  Adm.  R.  174. 

(7)  Adjudged  in  Clancy's  case,  by  (2)  Crowther  v.  Hopwood,  3  Stark, 
seven   Judges,   Holt,  C.  J.,  doubting  at  N.  P.  C.  21. 

first,  Fortese.  Rep.  208.  (3)  R.  r.  Grant,  Ry.  &  Mo.    N.   P. 

(8)  Boshell   V.   Bairett,   Ry.  &  Mo.     C.  270.  by  Abbott,  C.  J. 

N.  P.  C.  434.  (4)  Co.  Lit.  6,6.     Fortsc.  208. 

(9)  2  H.  P.  C.  277.  11  Rep.  99,  a  (.5)  3  Inft.  212.  Hawk.  P.  C.  b.  2, 
Hawk.  P.  C.  b.  1,  c.  72,  s.  9.     Com.     c.  48,  s.  22. 

(a)  In  the  U.  States  ».  Brockins,  3  Wash  C.  C,  R.  99,  a  conviction  for  an 
assault  and  battery  willi  intent  to  murder,  was  held  not  to  disqualify  the  witness, 
although  the  punishment  was  by  fine  and  imprisoament. 


10  Incompetency  from  Infamy  of  Character,  ^x.     [Ch.  S^ 

thorof(irc  follows,  that  such  an  outlaw  cannot,  be  a  competent 
witness.  (G)  Bat  outlawry  in  a  personal  action  is  no  ground  of 
exception.  (7) 
,  e  Some  kinds  of  ptmishniciit  were  formerly  thought  to  be 

puiiisiiinciit.  marks  of  infamy,  and  witnesses  were  irequently  rejected  after 
branding,  or  after  standing  in  the  pillory.  (8)  But  the  distinc- 
tion is  now  clearly  settled,  that  legal  infamy  arises  not  from 
the  nature  of  the  punishment,  but  from  the  nature  of  the  of- 
fence. (9)  The  maxim  is,  ex  delicto  nan  ex  supplicio  emer- 
gil  infamia.  (lOj  (a) 

I  *  1 9  J  *  2.    Extent  and  Effect  of  Disability. 

Aiikiaviis.  j^g  persons  convicted  of  infamous  offences  cannot  be  wit- 
nesses, their  affidavits  are  inadmissible  in  any  suit  or  proceed- 
ing between  other  parties.  With  regard  to  proceedings  to 
which  they  are  themselves  parties,  it  has  been  held  that  they 
are  incapable  of  making  affidavits  as  complainants;     (1)  but 

(6)  Celier's  case.  Sir  T.  Raym.  369.  the  fear  of  punishment  for  perjury,  (but 

(7)  Co.  Lit.  6,  ft.  Com,  Dig.  Testrn.  see  per  Lord  Ellenborough,  11  East,  311, 
A.  5.     HiiwU.  P.  C.  b.  2,  c.  48,  s.  22.  ante,  p.  15,  n.  (3).)      If,  however,  this 

(8)  2  Hale,  P.  C.  277.  Co.  Lit.  6,  should  be  the  case  in  the  particular 
b.     2  Dods.  Rpp.  187.  crime  of  perjury,  the  reasoning  is  not  so 

(9)  Gilb.  Evid.  277.  B.  N.  P.  292.  intelligible,  with  regard  to  many  other 
R.  V.  Davis,  5  Mod.  75.  R.  v>.  Ford,  2  offences.  The  adoption  of  the  class  of 
Salk.  690.  Pendock,  v.  Mackinder,  offences,  falling  within  the  technical  de- 
Willes,  6t)6.  2  Wils.  18.  S.  C.  Fortesc.  finition  of  felony,  as  one  of  the  criteri- 
Rep.  209  Priddle's  case,  2  Leach,  ons  of  incapacity,  may  be  objected  to 
496.  on  the  ground,  that  there  are  many  of- 

(10)  The  various  criterions  of  legal  fences,  of  a  more  serious  description, 
infamy  which  have  been  enumerated  in  falling  under  the  definition  of  niisdemea- 
the  text,  may,  perhaps,  appear  to  be  not  nors,  which  do  not  produce  incompeten- 
allogether  satisfactory.  With  respect  to  cy.  In  the  present  day,  the  distinction 
perjury,  it  may  be  thought  by  some,  between  several  felonies  and  misdemea- 
that  a  man  who,  from  motives  of  inter-  nors  is  purely  technical.  With  respect 
est,  has  been  led  to  violate  an  oath  in  to  some  of  the  particular  misdemeanors, 
one  instance,  is  unfit  to  be  trusted,  even  which  produce  incompetency,  they  ap- 
where  he  has  no  assignable  motive  for  pear  distinguishable  from  others  which 
giving  false  evidence  :  or  rather,  that  have  not  the  like  effect,  rather  upon  the 
some  latent  motive  ought  always  to  be  ground  of  authority,  than  on  any  well 
suspected,  sufficient  to  counterbalance  in  defined  principle. 

his  mind  both  the  effect  of  the  oath,  and         (1)  1  Salk.  461.     2  Stra.  1148. 

(a)  Crimen  falsi.  Conviction  of  treason,  felony,  or  any  species  of  the 
crimen  falsi,  will  incapacitate  the  party  convicted  from  giving  evidence  while  it 
continues  in  force,  without  regard  to  the  punishment.  The  People  v.  Whipple, 
9  Cowen,  707  ;  Commonwealth  v.  Green,  17  Mass.  515. 

However,  there  seems  to  be  a  difference  in  the  effect  of  a  conviction,  in  regard 
to  the  competency  of  a  witness,  where  the  conviction  was  in  another  coun- 
try, or  in  another  state.  Commonwealth  v.  Green,  supra.  The  Court  in 
tliis  case  considered,  that  there  was  no  difference  in  this  respect  between  any  state 
in  this  union  and  any  foreign  state  ;  and  that,  in  neither  case,  is  the  witness  to 
be  excluded,  on  account  of  such  conviction.  In  Slate  v.  Candler,  3  Hawks'  R. 
.'593,   the   law  was  held  to  be  otherwise. 

In  Commonwealth  «.  Knapp,  9  Pick.  511,  a  record  of  conviction  for  shop- 
breaking  in  another  state,  was  admitted  to  afl'ect  the  credit  of  a  witness. 


Ch.  3. J  Incompetency  from  Infamy  of  Character,  Sfc.  17 

their  affidavits  have  been  received  for  the  purpose  of  exculpa- 
ting or  defending  themselves.  (2)  Upon  the  same  principle, 
before  Quakers  had  been  made  competent  witnesses  in  crimi- 
nal proceedings,  their  affirmations  were  admitted  upon  a 
criminal  charge  against  themselves. 

When  a  witness  becomes  incompetent  from  infamy,  the  ef- 
fect is,  for  some  purposes,  the  same  as  if  he  were  dead  ;  and 
if  he  has  been  attesting  witness  to  any  written  instrument  be- 
fore conviction,  proof  may  be  given  of  his  hand-writing.  (3) 

3.  Proof  of  Incompetency. 

Incompetency  arising  from  conviction  of  an  infamous  crime,  judgment, 
can  only  be  established  by  proof  of  the  conviction  and  judg- 
ment in  due  course  of  law.  The  fact  of  the  party  having 
committed  the  offence  cannot  be  proved  vica  voce.  (4)  nor  will 
even  an  admission  by  the  witness  himself  of  having  been 
confined  in  a  gaol  *for  felony,  (1)  or  of  his  having  been  guil-  r  #20  1 
ty  of  perjury,  make  him  incompetent,  however  it  may  effect 
his  credit.  (2)  The  rule,  most  commonly  laid  down,  is  that 
a  conviction  makes  the  witness  incompetent ;  but  it  is  not  to 
be  understood,  that  incompetency  arises  from  the  conviction 
alone,  for  that  may  have  been  quashed,  on  motion  in  arrest  of 
judgment.  (3)  It  is  necessary  to  prove  the  judgment  as  well 
as  the  conviction,  and  this  must  be  done  in  the  usual  way  by 
the  record  or  a  copy.  (4)  (o) 

The  proceedings  must  appear  to  be  regular,  and  when  they 
have  taken  place  in  another  Court,  it  must  appear  from  the 
record  that  it  was  a  Court  of  competent  jurisdiction.  A  doc- 
ument, purporting  to  be  an  indictment  and  conviction,  is  im- 
perfect as  a  record  without  a  caption  ;  since  the  caption  shows 
by  what  authority  the  indictment  was  found ;  and  the  indict- 
ment must  state  all  circumstances  essential  to  constitute  the 
offence.  (5) 

(2)  Dnvis  and  Carter's  case,  2  Salk.  (3)  Lee  v.  Gansell,  Cowp.  8.  Gilb. 
461.  Charlesworlh's  case,  cited  by  the  Evid.  129.  Corn.  Dig.  Testm.  A.  5. 
court   in   Walker  v.   Kearney,   2   Stra.     Sutten  v.  Bishop,  4  Bur.  2283. 

1148.  (4)  8  East,  78.     See ;;o»f,  Proof  of 

(3)  Jones  v.  Mason,  1  Stra.  833.  Judgments. 

(4)  1  Sid.  51.  (5)  Cooke  v.   Maxwell,  2  Stark,  N. 

(1)  R.   u.  Castell  Careinion,  S  East,     P.  C.  183. 
7f). 

(2)  R.     V.    Teal,     11    East,    309. 
Rands  ».  Thomas,  5  M.  if  S.  244. 

(a)  All  the  books  which  treat  of  this  subject,  are  positive  and  express  in  the 
declaration,  that  the  party  objecting  must  be  prepared  with  the  record  ;  and  as 
some  of  them  express  it,  come  with  it  in  his  hand  ;  or  he  shall  not  be  heard 
against  the  competency  of  the  witness — not  only  must  infamy  be  proved  by  record, 
but  the  objection  shall  not  be  heard  without  a  record.  Per  Parker,  C.  J.  in 
Conimonvvealtb  t;.  Green,  17  Mass.  515. 

3 


18  Incompetency  from  Infamy  of  Character ,  ^c.  [Ch.  3. 

4.   Competency  how  restored. 

A  person  convicted  of  an  infamous  crime,  being  thus  disa- 
bled from  giving  evidence,  it  remains  to  be  considered  by 
wliat  means  the  disabiUty  may  be  removed. 

The  competency  of  the  witness  may  be  restored  : — 1st, 
By  reversal  of  the  judgment,  or  of  the  other  proceedings  pro- 
ducing the  disquahfication  ;  2ndl3r,  By  pardon  ;  and  3dly,  By 
enduring  the  punishment  awarded  for  the  oifence. 

Is^   Reversal  of  the  Judgment. 

Due  proof  of  the  judgment  having  been  given  by  the  par- 
ty objecting  to  the  witness,  the  opposite  party  may  shew  that 
such  judgment  has  been  reversed  on  a  writ  of  error.  So,  if 
f  *21  1  tlic  dis^quaUfication  arise  from  outlawry  for  treason  or  felony, 
the  reversal  of  the  outlawry  may  be  shewn  in  like  manner. 
In  a  case  where  it  was  objected,  that  the  witness  had  been 
attainted  by  a  statute,  which  subjected  him  to  the  penalties  of 
an  attainder,  unless  he  surrendered  before  a  certain  day,  (which 
is  a  kind  of  parliamentary  outlawry,)  the  objection  was  met 
by  shewing,  that  the  witness  had  surrendered  conformably 
with  the  act  ;  and  a  record  of  a  proceeding,  commenced  on 
the  part  of  the  crown,  and  defended  on  the  part  of  the  wit- 
ness by  a  plea  of  surrender,  which  the  Attorney  General  con- 
fessed to  be  true,  was  allowed  to  be  conclusive  proof  of  the 
fact  of  the  surrender  within  the  limited  time.  (1)  This  how- 
ever was  not  evidence  in  the  nature  of  a  reversal  of  the  at- 
tainder, but  its  effect  was  to  shew,  that  the  penalties  of  the 
act  had  never  been  incurred  by  the  witness. 

Idly.  Pardon. 

The  competency  of  a  witness  may  be  restored  by  a  pardon 
palrdoii°'^  from  the  crown  under  the  great  seal.  Whatever  doubts  were 
formerly  entertained  upon  the  subject,  (2)  it  has  long  since 
been  settled,  that  a  pardon  not  only  takes  off  every  part  of 
the  punishment,  but  also  clears  the  party  from  the  legal  disa- 
bilities of  infamy  resulting  from  his  offence.  (3)  A  pardon 
is  said  to  make  the  witness  a  new  creature,  and  to  give  him 
a  new  capacity  ;  the  crime  may  indeed  be  urged  against  him 

(1)  I  Old  I,ovat's  cnse,  9  St.  Tr.  632,  82.  Rookwood's  ease.  Rep.  temp. 
G65,  fol.  ed.  S.  C.  18  How.  St.  Tr.  Holt,  685.  4  St.  Tr.  682,  fol.  ed. 
1004,  1011.  13  Howell's    St.  Tr.    185.      Crosby's 

(2)  See  per  Lord  Coke,  Prown  v.  case,  Lord  Raym.  3.9.  Lord  Castle- 
Crashaw,  2  Rulst.  154.  Hy  Doddridge,  main's  case,  Sir  T.  Raym.  379.  2  H. 
.1.,  in  H;irris  v.  White,  Palm.  412,  P.  C.  278.  Com.  Dig.  Testm.  A.  5. 
Latch.  81,  and  other  dicta  cited  2  Harg.  Reilly's  case.  Leach,  .^ilO.  Lord  War- 
Jur.  Arg.  263.  wick'scase,  13  Howell's,  St.Tr.  1003.. 

(3)  Cuddingtoti  t).  Wilkins,  Hob.  67, 


Ch.  3.j  Incompetency  from  Infamy  of  Character,  c^v.  19 

as  affecting  his  credit,  but  his  competency  is  entirely  restor- 
ed,   (a) 

This  rule  must  however,  as  it  seems,  be  understood  subject 
to  one  qualification.  A  pardon  will  always  restore  competen- 
cy, when  the  disability  is  a  consequence  of  the  judgment,  ac- 
cording to  the  ordinary  rules  of  law  ;  but  where  the  disabil- 
ity is  annexed  to  the  conviction  of  a  particular  offence  by  the 
express  words  of  a  statute,  it  is  laid  down  that  a  pardon  will 
not  in  such  a  case  ^restore  competency,  for  the  prerogative  of  [  *22  ] 
the  crown  is  controlled  by  the  act  of  the  legislature,  (1)  Thus, 
if  a  man  be  found  guilty  on  an  indictment  for  perjury  at  com- 
mon law,  a  pardon  from  the  crown  will  make  him  a  good  wit- 
ness ;  but  if  he  be  convicted  of  perjury,  or  subornation  of 
perjury,  on  the  stat.  5  Eliz.  c.  9,  he  will  not  be  rendered  com- 
petent by  a  pardon,  for  the  statute  expressly  provides  that  he 
shall  never  be  admitted  to  give  evidence  in  any  Court  of  Re- 
cord, until  the  judgment  be  reversed. 

In  order  to  prove  a  pardon,  it  must  be  produced  under  the 
great  seal.  And  if  the  pardon  is  conditional,  the  performance  ''araon"^ 
of  the  condition  ought  to  be  shewn,  (2)  for  on  that  depends 
all  its  efficacy.  Thus,  where  the  pardon  is  on  condition  of 
transportation  for  a  number  of  years,  the  witness  is  not  com- 
petent before  the  expiration,  or  other  lawful  determination, 
of  the  term.  (3) 

Where  a  warrant  is  granted  under  the  sign  manual,  coun- 
tersigned by  a  principal  Secretary  of  State,  for  a  free  or  con-  Pardon  un- 
ditional  pardon  of  a  person  convicted  of  felony,  his  discharge  '^^  *'?° 
from  custody  in  the  case  of  a  free  pardon,  and  the  performance 
of  the  condition  in  the  case  of  a  conditional  pardon,  will  have 
the  same  effect  as  a  pardon  under  the  great  seal,  in  regard  to 
the  felony  for  which  the  pardon  is  granted.  (4) 

The  restoration  to  competency,  by  means  of  a  pardon,  pro- 
bably proceeded  on  the  ground  of  a  presumption,  that  the  par- 
don was  granted  in  consequence  of  the  error  of  the  court, 
which  pronounced  the  conviction  ;  because  as  Courts  of  Jus- 
tice are  not  infallible,  there  may  be  perfect  innocence,  not- 
withstanding a  legal  conviction  of  guilt.   (.5)       Pardons  are 

(U  2  II.  p.  C.  278.     R.  r.   Hreepp,  (3)   Ziiti.  Burridge's  case,  .3  P.  Wms. 

2  SalU.   514.      1   Lord  Rrtym.  25(5,  W.  485.     See  Badcock's  case,  Pmss.  &  Ry. 

C.     R.  c.  Ford,  2  Halk.  690.     Crosby's  Cr.  Ca.  248. 

case,    2    Salk.    689.       B.    .\.    1'.    292.  (4)  Stat   7&8G.  4,c.  2S,  s.  13. 

Hawk.  h.  2,  c.  46,  s.  112.     R.  v.  War-         (5)  See  Mr.  Il.irgrave's  Tract  on  ilie 

den  of  the  Fleet,  Rep.  temp.  Holt,  13.'>.  efteet  nf  tlu;  King's  pardon  for  Perjury. 

Jfnort.  3  Salk.  135.  2    U.-ngr.    .fur.    Arg.   and   2  il.ile,  278. 

(2)    IJawk.  b.  2,  c.  37,  s.  45.  Crosbys  case,  5  Mod.  15. 

Ca)  Comtnonwealth  w.  Green,   17  Mas'?.  515. 

.\  nolle  prosequi  is  neither  a  pardon  nor  acquittal.  Conimonwealili  l\  Wlieeler, 
2  .XJass.  172.     See  7  Pick    I'T. 


20  Incompetency  from  Infamy  of  Chajrtcter,  (^'c.  [Ch.  3. 

not  unfrequently  granted  for  the  purpose  of  procuring  the  ev- 
idence of  a  witness  as  to  some  offence,  which  might  other- 
wise go  unpunished.  Thus  the  crown  has  the  power  of  sup- 
plying evidence,  or  withholding  it  ;  and  convicts,  in  the  hope 
r  #23  I  of  receiving  a  pardon,  *may  be  tempted  to  exaggerate  and 
strain  their  evidence.  There  is  danger,  that  the  course  of 
public  justice  may  thus  be  interrupted  ;  and,  in  point  of  cred- 
ibility, such  a  witness  must  be  regarded  in  the  same  light  (if 
not  worse),  after  a  pardon  as  before.  (1)  It  has  happened, 
that,  for  the  purpose  of  a  single  prosecution,  no  less  than  five 
convicts  have  been  pardoned,  thus  escaping  the  punishment 
due  to  their  crimes : — whereas,  if  such  evidence  could  be 
used  without  a  pardon,  it  would  be  more  free  from  suspicion, 
and  the  ends  of  Justice  would  bO  more  effectually  attained. 

3dly.  Effect  of  enduring  the  Punishment  for  the  Offence. 

The  restoration  of  competency,  by  suffering  the  punish- 
siaiute  9     mcut  awarded  for  the  offence,  depends,  at  the  present  day,  up- 
Gpo.  4,  c.   on  the  provisions  of  the  stat.  9  Geo.  4,  c.  32.       Before    the 
sz,  $.  3.      passing  of  this  act,  the  endurance  of  the  punishment  in  many 
cases  operated  to  restore  competency,   but  the  law   upon  this 
subject  was  involved  in  some   confusion,  in  consequence   of 
the  recent  extensive  changes  effected  in  the  criminal  law  of 
the  country.     By  the  3rd  sect,  of  this  statute,   after  reciting 
that  it  was  expedient  to  prevent  all  doubts  respecting  the  civ- 
Felonies.     jj  rights  of  pcrsons  convicted  of  felonies,  not  capital,  who  had 
undergone  the  punishment  to  which  they  had  been  adjudged, 
it  is  enacted,  "  that  where  any  offender,  hath  been,   or  shall 
be  convicted  of  any  felony,  not  punishable  with  death,  and 
hath  endured,  or  shall  endure  the  punishment  to  which  such 
offender  hath  been  or  shall  be  adjudged  for  the  same,  the  pun- 
ishment so  endured  hath  and  shall   have  the   like  effect  and 
consequences  as  a  pardon  under  the  great  seal,  as  to  the  felony 
whereof  the  offender  was  so  convicted.       Provided  always, 
r  ^2A  1   that  nothing  herein  contained,  nor  the  enduring  of  such  pun- 
"-  ^   ishment  shall  ^prevent  or  mitigate  any  punishment,  to  which 

the  offender  might  otherwise  be  lawfully  sentenced  on  a  sub- 
sequent conviction  for  any  other  felony." 

We  have  already  seen  that  a  pardon  under  the  great  seal 
operates  as  a  complete  restoration  of  the  competency  of  a  wit- 

(1)  This  doctrine,  of  the  restoration  gard   to   the  evidence  of  Dangerficld,  7 

of  a  witness's  credit   by  a  pardon,    ap-  8t.    Tr.    296,    1034,    1083.      But  Lord 

pears  to   be  of  iiioderii    origin.       Lord  Holi,  after  the   Revolution,  appears    to 

Coke,    2   Bulstr.    154,   is   an    authority  have   firmly     established     the    doctrine, 

against  it,  and  the  maxim  was   "  Poena  Crosby's  case,  12  Howell's  St.  Tr.  r29(j. 

potest  tolli,  culpa  perennis  erit."  There  It  was  debated  till  16i)6  in  Rookwood's 

is    considerable    llueluation    of    opinion  case,  1 3  Howell's  St.  Tr.  183.      See  2 

upon  the  subject,  in  the  trials  arising  out  Hale,  278.      2  Salk.  690.     Fitzg.    107. 

of  the  Popish  Plot,  particularly  with  re-  1  Lord  Raym.  39.     Sir  T.  Rayai.  G39 


Ch.  3.]  Incompetency  from  Infamy  of  Character,  S)'c.  21 

ness,  who  has  been  convicted  of  a  disquaUfying  offence.  And 
since  the  above  enactment,  the  endurance  of  the  punishment 
awarded  will  have  precisely  the  same  operation  in  all  cases  of 
felonies  not  capital. 

A  separate  provision  is  introduced  in  the  same  statute,  rel-  Misdemea- 
ative  to  misdemeanors,  by  sect.  4,  Avhich  is  as  follows  :  "  And  no"- 
whereas  there  are  certain  misdemeanors,  which  render  the 
parties  convicted  thereof  incompetent  witnesses,  and  it  is  ex- 
pedient to  restore  the  competency  of  such  parties,  after  they 
have  undergone  the  punishment  ;  be  it  therefore  enacted,  that 
when  any  offender  hath  been  or  shall  be  convicted  of  any 
such  misdemeanor,  (except  perjury  or  subornation  of  perju- 
ry,) and  hath  endured  or  shall  endure  the  punishment  to 
which  such  offender  hath  been  or  shall  be  adjudged  for  the 
same,  such  offender  shall  not,  after  the  punishment  so  endur- 
ed, be  deemed  to  be  by  reason  of  such  misdemeanor  an  incom- 
petent witness  in  any  court  or  proceeding,  civil  or  criminal." 
This  enactment  expressly  restores  to  competency,  in  all  cases, 
except  perjury  or  subornation  of  perjury,  persons  convicted 
of  misdemeanors,  after  suffering  the  punishment  awarded  by 
their  sentence. 

Questions  may  sometimes  arise,  as  to  what  will  amount  to  Endurance, 
an  endurance  of  the  punishment,  within  the  meaning  of  the 
statute. 

In  a  case  of  this  nature,  which  arose  upon  an  enactment  of 
a  similar  description  in  a  statute  now  repealed,  (1)  where  a 
witness  had  been  convicted  of  grand  larceny,  and  sentenced 
to  transportation  for  seven  years,  but  had  been  confined  for 
that  time  in  the  hulks  and  then  discharged  ;  it  was  held,  that 
such  confinement  under  the  sentence  of  transportation  restor- 
ed his  compe*tency,  and  the  judges  thought  that  the  circum-  [  *25  ] 
stance  of  his  having  twice  escaped  for  a  few  hours  each  time, 
made  no  difference,  as  he  had  been  brought  back  and  confin- 
ed for  the  remainder  of  the  term.  (2) 

(1)  Badcock's  case,  Russ.  &  Ry.  C.  ted  punishments  should  operate  as  a  par- 
C.  248.  don,  and  remove  all   incapacities.      But 

(2)  In  ancient  times  competency  was  these  enactments  were  confined  to  cler- 
resioied  after  conviction  of  any  otience  gyable  oHences,  and  as  the  privilege  of 
which  admitied  of  benefit  of  clergy  by  the  clergy,  at  common  law,  extended 
purg:itic»n  before  the  Ordinary.  The  only  to  capital  felonies,  and  not  to  petty 
Stat.  18  Eliz.  c.  7,  9.  3,  abolished  pur-  larcenies  or  misdemeaimrs,  persons  con- 
gation,  and  enacted,  that  afier  allowance  victed  of  these  minor  otiences  remained 
o(  clergy,  and  burning  in  the  hand,  the  incompetent,  notwithstanding  they  might 
offender  should  be  forthwith  delivered  have  endured  the  sentence  of  the  law. 
out  of  prison  :  and  it  was  held  upon  this  This  inconvenience  was  in  part  removed 
statute  that  the  burning  in  the  hand  sub-  by  the  stat.  31  Ceo.  3,  c.  35,  which 
slituted  lor  purgation,  produced  the  same  enacted,  that  no  person  should  become 
eflect  as  puigation  in  restoring  compe-  incompetent  by  reason  of  a  convicliua 
tency.  By  various  subsequent  statutes  for  petty  larceny.  J5y  the  7  &  8  (ieo.  4, 
other  punishments  were  substituted  ia  c.  28,  s  (i,  benefit  of  clergy  was  abol- 
lieu  of  burning  in  the  hand,  and  it  was  ished  ;  and  by  the  7  &,  8  Geo.  4,  c.  29, 
provided  that  the  suflering  such  substitu-  s.  2,  the  distinction  between  grand  and 


22  Incompetevcij  from  Lifainy  of  Character,  c^'c.  [Ch.  4. 

CHAPTER  IV. 

OF    THE   EVIDENCE   OF   ACCOMPLICES,     INFORMERS,     AND    SELF-DIS- 
CREDITING WITNESSES. 

Section  I. 

Of  the  Admissibility  of  Accomplices. 

It  has  been  shewn  in  the  preceding  chapter,  that  a  witness 
is  not  incompetent  from  infamy  of  character,  unless  a  convic- 
tion and  judgment  are  proved  against  him,  though  he  may 
Gonerai       himsclf    admit    that    he    has    been   guilty  of   an  infamous 
rule.  crime.     And  it  is  also  a  settled  rule  of  evidence,   that  a  wit- 

[  *2G  ]   ness  called  on  a  cri*minal  prosecution  will  not   be   incompe- 
tent, on  the  ground  that  he  has  been  an  accomplice  with  the 
prisoner  at  the  bar,  in  the  particular  crime  which  forms  the 
subject  of  the  indictment,    [a] 
i^''ivide°i're       With  rcspcct  to  auy  objection  that  might  be  made  against 
oCaccom-    the  reception  of  the  evidence  of  accomplices,  on  the  ground 
p  ices.         ^£  ^j^g  admitted  infamy  of  their  character,  there  appears  to  be 
Distinction   ^^  distinction  between  an    accomplice,  who  acknowledges 
between      that  he  has  participated  in  the  commission  of  the  crime  with 
cer3'      which  the  prisoner  at  bar  stands  charged,  and  any  other  wit- 
other  per-    nggg  ^y]^Q  admits  that  he  has  been  guilty  of  a  similar  crime 

sonsofinla-  -i- rf  ■  t^i  ■  r  ^■ 

inous  char-  ou  a  diiierent  occasion.     But  the  testimony  oi  an  accomplice 
luferiiv  a  H  ^^  usually  givcu  uudcr  an  express,  or  implied  promise  of  par- 
iaterest.      doii :  soiuetimes,  in  the  expectation  of  receiving  a  reward  on 
the  prisoner's  conviction  ; — and  this  peculiarity  in  the  situa- 
tion of  an  accomplice,  undoubtedly,  appears  to  furnish  a  much 
stronger  ground  of  objection  to  his  evidence,  than  exists  with 

petty  larceny  was  abolished,  and  the  lat-  the  nature  of  punishment,  or  on  tl)e 
ter  made  subject  to  all  the  legal  inci-  ground  of  a  regenerating  effect  of  pun- 
dents  of  the  former.  The  alterations  Ishment  upon  the  moral  feehngs  of  the 
introduced  by  these  enactments  gave  rise  offender  :  in  eitlier  point  of  view,  the 
to  the  Stat.  9  Geo.  4,  c.  32,  s.  3  and  4,  principle  is  not  justified  by  sound  rea- 
the  provisions  of  which  are  inserted  in  soning  or  by  experience.  On  the  gener- 
the  text.  rtl  subject  of  the  incompetency  of  wit- 
It  does  not  seem  clear,  whether  the  nesses  from  infamy,  see  a  Treatise  on 
principle  of  restoration  to  competency,  the  Incompetency  of  Witnesses  by  11. 
by  suffering  a  sentence,  has  proceeded  ^\^hitcolnbe,  Esq.,  A.  D.  1824. 
on  the  ground  of  incompetency  being  in 

(a)  The  People  v.  Whipple,  9  Cowen,  707  ;  Commonwealth  v.  Knapp,  10 
Pick.  492  ;  Brown  v.  Commonwealth,  2  Leigh's  R.  769  ;  Byrd'scase,  2  Virg. 
Ca.  490.  The  evidence  of  accomplices,  has  at  all  times  been  admitted,  either 
from  a  principle  of  public  policy,  or  from  judicial  necessity,  or  from  both.  Per 
Duer,  J.  9  Cow.  II.  707.  In  Byrd's  case  supra,  the  court  gave  a  very  decided 
opinion  on  tiie  competency  of  an  accoinplice  as  a  witness,  at  any  time  before  bis 
conviction. 


Sect.  1.]  Incompetency  from  Infamy  of  Cliaracter^  6^0.  23 

regard  to  witnesses  whose  conduct  has  been  equally  guilty, 
but  who  do  not  give  their  evidence  from  the  same  interested 
motives.  It  has  however  long  since  been  settled,  that  an  un- 
convicted accomplice  is  not  an  incompetent  witness,  although 
he  may  have  had  a  promise  of  pardon  or  reward,  on  conditioR 
of  giving  evidence  against  the  prisoner.   (1) 

The  evidence  of  accomplices  has  therefore  been  at  all  times  Accompii- 
admitted,  and  its  admission  has  been  supported  on  the  ground  cescomije- 
of  public  policy,  and  indeed  of  necessity,  on  account  of  its  "^"'' 
being  scarcely  possible  to  detect  conspiracies,    and   many  of 
the  Avorst  crimes,  without  their  information.       In  Charnock's 
case  (2)  Lord  Holt,  in  his  address  to  the  jury,  says,  ''  Conspir- 
acies are  deeds  of  darkness  as  well  as  of  wickedness,  the  dis- 
covery whereof  can  properly  come  only  from  the  conspirators 
themselves  ;  and  the  evidence  of  accomplices  has  been  allow- 
ed good  proof  in  all  ages,   and  they  are  the  most  proper  Avit- 
nesses :  for  *otherwise,  it  is  hardly  possible,  if  not  altogether   [  *27  ] 
impossible,  to  have  full  proof  of  such  secret  contrivances."   In 
answer  to  an  objection  of  the  prisoner,  that  ''  although  an  ac- 
complice was  a  legal  witness,  he   was  not  a  good  one,"  Lord 
Holt,  adds,  "  the  credit  of  what  he  says,  as  in  all  other  cases, 
must  be  left  to  the  jury,  who  are  judges  of  the  matter  of  fact, 
and  of  the  credibility  of  witnesses." 

The  object  of  admitting  the  evidence  of  accomplices,  is  in  objen  of 
order  to  effect  the  discovery  and  punishment  of  crimes,  which  admunng 

Eccompli* 

cannot  be  proved  against  the  offenders,  without  the  aid  of  an  ces. 
accomplice's  testimony.     In  order  to  prevent  this  entire  failure 
of  justice,  recourse  is  had  to  the  evidence  of  accomplices,  and 
they  are  admitted  to  give  evidence  for  the  crown,   either  un- 
der an  express  promise  of  pardon,  offered  upon  certain  condi- 
tions by  special  proclamation,  in  the  Gazette,  or  otherwise ;  Express  or 
or,  more  commonly,  under  an  implied  promise  of  pardon,   on  '"^p'Seti 
condition  of  their  making  a  full  and  fair  confession  of  the  pardon, 
whole  truth.  (1)     In  the  former  case,  accomplices  who  com- 
ply with  the  proposed  conditions,  are  entitled  to  pardon  as  a 
matter  of  right ;  in  the  latter  case,  they  have  an  equitable  ti- 
tle to  be  recommended  to  mercy,  on  a  strict  and  ample  perfor- 
mance of  the  condition,  on  which  they  are  admitted  as  wit- 
nesses, to  the  satisfaction  of  the  presiding  judge.     This  equi-  Equitable 
table  right  cannot  be  pleaded  in  bar,  or  be  in  any  manner  set  pardon°ef- 

fect  of. 

(1)  Tongue's  case,  Kel.  17.  1  II.  in  Despard's  ease,  28  How.  St.  Tr.  4S8. 
\\  C.  303,  S.  C.  Layer's  case,  10  St.  (1)  See  Rudd's  case,  Cowp.  389. 
Tr.  259.  19  How.  St.  Tr.  373.  S.  C.  The  practice  of  admitting  the  evidence 
Hawk.  r.  C  b.  2,  c.  46,  s.  135.  Wil-  of  accomplices  appears  to  have  arisen 
les,  423,  425.  3  Esp.  68.  4  East,  180.  from  the  ancient  doctrine  of  approve- 
Say.  289.  R.  V.  Rookwo«d,  4  St.  Tr.  rneat  which  has  been  long  since  obso- 
681.  lete.     See  as  to  Approvement,  2  Hale, 

(2)  4  St.  Tr.  594.     S.  C.    12  How.  i».  C.  227,  c.  29.    Cowp.  Rep.  3a4. 
1454,  referred  to  by  Lord  Elienboiough 


24  Incompetency  from  Infamy  of  Character^  ^w  [Ch.  4. 

up  as  a  legal  defence  to  an  indictment  against  them  for  the 
same  offences  with  respect  to  which  they  have  appeared  as 
witnesses  against  others,  though  it  may  be  made  the  ground 
of  a  motion  for  putting  off  their  trial,  in  order  to  allow  time 
for  an  application  to  the  proper  quarter.  (2)  With  regard  to 
other  otl'cnces  with  which  the  prisoner  at  the  bar  is  not  charg- 
ed, an  accomplice  can  derive  no  advantage  from  such  equita- 
ble claim  to  a  pardon :  the  claim  must  be  considered  as  limit- 
ed to  the  particular  offence,  for  the  prosecution  of  which  his 
testimony  is  admitted.  (3) 
[  *2S  ]        *If  an  accomplice  is  himself  separately  indicted  for  the 

I'rnciice.as  game  oflencc,  this  will  not  affect  his  competency  before  con- 
to  adimiting  .  i-t\         -\  r  •     ■  •  • 
accompli-    victiou  ;  (1)  and  even  after  conviction  he  is  not  incompetent, 

Separate      uiilcss  judgment   has  been  passed  upon  him  ;  for  it  is  not  the 
imiictmeiit.  coiiviction  but  the  judgment,  that  creates  the  disability. 

It  is  not  a  matter  of  course,  to  admit  a  person  charged  with 
the  commission  of  a  crime,  as  a  witness  against  his  associates, 
not  even  after  he  has  been  allowed  to  give  evidence  before 
the  committing  magistrate  ;  but  if  his  evidence  is  deemed  to 
be  absolutely  necessary  in  support  of  the  prosecution,  the  pro- 
per course  is  to  apply  to  the  court,  for  permission  to  send  him 
as  a  witness  before  the  grand  jury  ;  and  it  is  in  the  discretion 
of  the  judge,  under  all  the  circumstances  of  the  case,  wheth- 
,.     er  he  will  grant  or  refuse  an  order.  (2)     Where  it  is  intended 

Accomplice  .         °.  t        ■  i  i  •  i  ■,       •       ^ 

jointly  in-  to  make  this  application,  the  accomplice  ought  not  to  be  inclu- 
dicted.  (jg(j  jj^  ^j-^g  indictment  ;  but  where  he  has  been  included  with 
his  confederates  in  a  joint  indictment,  he  may  still  be  used  as 
a  witness  in  some  cases  with  the  consent  of  the  court.  (3) 
Thus,  in  a  prosecution  for  a  conspiracy,  a  verdict  of  acquittal 
may  be  taken  against  some  of  the  defendants  before  the  open- 
ing of  the  case  ;  and  the  defendants  so  acquitted  may  be  cal- 
led as  witnesses  for  the  prosecution.  (4)  And  there  seems  to 
be  no  objection  to  the  same  course  being  adopted,  with  the 
permission  of  the  court,  in  cases  of  felony.     So  also,  if  an  ac- 

(2)  Rudd's  case.     Cowp.  339.  118.      Bath   v.   Montagne,  cit.   Fortsc. 

(3)  Lee's  case,  Russ.  &  Ry.  Cro.  Car.  Rep.  247.  It  was  formerly  tliouglit, 
361.  Brunton's  case,  Rdss,  &  Ry.  454.  from  analogy  to  the  ancient  doctrine  of 
It  is  entirely  in  the  discretion  of  the  approvement,  that  an  accomplice  sepa- 
judge  in  these  cases,  whether  he  will  re-  rately  indicted  for  the  same  offence, 
commend  the  accomplice  to  mercy.  S.  could  not  give  evidence  against  the  oth- 
C.  As  the  accomplice  is  entitled  to  no  ers,  unless  he  had  first  pleaded  guilty  to 
protection  in  respect  to  other  offences,  he  the  indictment  against  him  ;  Sir  P. 
is  not  bound  to  answer  questions  relative  Cresby's  case,  1  Hal.  P.  C.  303. 

to  such  offences  on  his  cross-examination;         (2)  It  is  usual  for  the  judge  to  grant 

West's  case,  O.  B.  Sessions,  1821.    See  the  application  on  the  representation  of 

post.  Examination  of  Witnesses.     It    is  the  counsel  for  the  prosecution,  that  the 

not  usual  to  admit  accomplices  who  are  evidence  would  otherwise  be  insufficient 

charged  with  other  felonies.  to  substantiate  the  charge. 

(1)  Case  of  Bilbou  and  others,  2  H.         (3)  See  infra,  competency  of  parties 

P.  C.  279.      1  II.  P.  C.  305.     Gunston  to  the  suit. 

and    Downs,    2    Rol.   Abr.  685,  pi.  3.         (4)  R.  v.  Rowland,  Ry.  &  Mo.  N.  P. 

Hawk.  b.  2,  c.  46,  s.  99.      Gilb.    Evid.  C.  401. 


Sect.  l.J  Incompetancy  from  Infamy  of  Character,  Sj'c.  25 

complice,  who  is  jointly  indicted  with  others  plead  guilty,  and 
is  fined  by  the  court,  and  pays  the  fine,  (in  a  case  where  such 
fine  may  be  imposed  by  way  of  punishment,   and   where  the 
suti'ering  *the  punishment  restores  ccmpetency)   he    may  be    r  ^q.t  i 
called  as  a  witness  against  the  other  prisoners.  (1)  '- 

If  an  accomplice,  after  havina:  confessed  the  crime,  and  af-  ^^reach  of 

'■  '     .        ,  "-'  .  .  ...  coniracl. 

ter  havmg  been  received  as  a  witness  against  his  associates, 
breaks  the  condition  on  whicli  he  has  been  admitted,  by  refus- 
ing to  give  full  and  fair  information,  the  court  may  direct  a 
bill  to  be  presented  forthwith  to  the  grand  jury  against  him  ; 
or  if  they  are  discharged,  may  commit  him  to  prison,  and  he 
may  be  tried  and  convicted  on  his  own  confession.  (2) 

On  the  trial  of  a  person  for  a  misdemeanor  in  receiving  sto-  au^  "jjoces- 
len  goods,  under  the  repealed  statute,  (22  Geo.  3,  c.  58,)  which  sary.  (a) 
authorized  proceedings  against  the  accessary,  notwithstanding 
the  principal  felon  might  not  have  been  convicted,  or  might 
not  be  amenable  to  justice,  the  party  who  had  committed  the 
theft,  but  had  not  been  convicted,  was  held  to  be  a  competent 
witness  for  the  prosecution,  (3)  and  the  same  doctrine  would 
be  applicable  to  the  case  of  a  receiv^er,  prosecuted  for  a  sub- 
stantive felony  under  the  provisions  of  the  statute  now  in 
force  on  this  subject.  (4) 

As  the  infamy  of  an  accomplice's  character  does  not  render  adm^ssibi'e^ 
him  an  incompetent   witness  for   the  prosecution,    it  follows,  for  prisoner, 
upon  the  same  principle,  that  he  will  be  also  a  competent  wit- 
ness   on  behalf  of  the   prisoner,   notwithstanding  he  may  be 
himself  charged  on  a  separate  indictment,  unless  he  has  been 
actually  convicted  and  sentenced.  (5)     And  upon  a  joint  in- 
dictment   against  several  prisoners,  when  there   is  either  no 
evidence   whatever,  or    very  slight  evidence  against  one   of 
them,  the  *court,  in  the  exercise  of  its  discretion,  sometimes    [  *30  ] 
will  direct  a  verdict  to  be  given  for  him,  and,  upon  his  acquit- 

(1)   A    witness    so     circiinistanred    is  also  it  vvus  decidi^d    that  on    hh     indict- 

eoiiipetent  for  the  othyr  dereiidiiiits,    see  iiienl  on  iIk;  «l:it.  4  G.  1 ,  c.  11,  for  tnU- 

R.  V.  Fletcher,  1  Stra.  683,  {■posl,com-  iiig  a  reward    to    help    to    the  dis(;overv 

petency  of  parties  to  suit,)  and  the  prin-  of  stolen  goods,  tlie  principal    who    had 

ciple  is  the  same  in    regard  to  liis    corn-  not  been  ronvmted  might  be  called  as    .1 

jifitency  for  the  prosecution.  witness  ;   Wild's    case,    2    East,    P.    C. 

{■2)  K.v.    Burley,  2  Stark.    Evid.    (2  782.     See  7  &  8  Geo.  4,  c.  29,  s.  5S. 

edit.)  12  n.  (r).  (4)  7  &  S  Geo.  4,  c.  29,  s.  54. 

(3)   llaslarn's  case,  1  Leach,   (Jr.  Ca.  (5)   2  Hale,  P.  C.  280.     2  Roll.  Abr. 

467.     Price's  case,  ibid.   46K,   n.   (1).  685.     Fortsc.  24G. 
Palram's  case,  2  East,    P.  C.   782.     So 


(a)  In  cases  of  felony,  the  principal  is  a  conjpetent  witness  against  the  accessary, 
and  instances  have  occurred  in  New  York,  in  which  they  h.ivft  been  admitted.  Per 
Duer,  .1.  People  v.  Whipple,  9  Coweii,  707. 

In  Commonwealth  i'.  Phillips,  16  Mass.  42:-),  it  was  held,  that  the  principal  in 
a  capital  case,  must  be  convicted  before  the  accessary  could  be  put  on  trial. 

In  the  case  of  principal  and  accessary,  the  acqidttul  of  the  principal  it  seems 
is  admissible  in  evidence  for  the  accessary,  though  not  coiiclusivc.  'J'he  People 
V.  Buckland,  1.3  Wend.  .592.     See  the  case  cfMn^bee    v.  Avery,  18  J.  H.  3o2. 


20  Iiiruinpelcnci/  from  Infamy  of  Characler,  Sf'c.        [CIi  4. 

tal,  admit  him  as  a  witness  for  the  other  prisoners.  (1)  In 
such  a  case,  however,  the  witness  stands  wholly  absolved 
iVom  the  charge,  and  can  no  longer  be  considered  in  the  light 
ol"  an  accomplice. 


Section    H. 
Of  the  Confirmation  of  Accomplices. 
Accomplice       Since  accomplices  are  competent   witnesses,   it   appears  to 

not  corrob-  ^  >■  .  ,      .      .  \  '■ 

orated.  follow  as  a  ncccssary  consequence,  that  it  their  testimony  is 
believed  by  the  jury,  a  prisoner  may  be  legally  convicted  up- 
on it,  though  it  be  unconlirmed  by  any  other  evidence.  It 
is  the  peculiar  province  of  the  jury  to  determine  upon  the  de- 
gree of  credit  to  be  attached  to  any  competent  evidence  sub- 
mitted to  their  consideration  ;  and  it  has  accordingly  been 
laid  down  in  many  cases  as  a  settled  ride,  that  a  conviction 
obtained  upon  the  unsupported  testimony  of  an  accomplice  is 

Praciicere  sti'ictly  legal.  (2) 

quiniiprcor-      g^^  great  iniustice  would  result,  if  it  were  the  practice  of 

roborntion.    .      .         ~  .''  n         ■  n  r 

juries  to  convict  upon  the  unsupported  evidence  of  accompli- 
ces, whose  testimony,  though  admitiecl  from  necessity,  ought 
always  to  be  received  with  great  jealousy  and  caution.  For 
upon  their  own  confession  they  stand  contaminated  with  guilt  ; 
they  admit  a  participation  in  the  very  crime,  which  they  en- 
deavour by  their  evidence  to  fix  upon  the  prisoner ;  they  are 
sometimes  entitled  to  reward  upon  obtaining  a  conviction, 
and  always  expect  to  earn  a  pardon.  Accomplices  are  there- 
fore of  tainted  character,  giving  their  testimony  under  the 
strongest  motives  to  deceive  ;  and  a  jury  would  not  in  gener- 
al be  justified,  in  giving  to  such  witnesses  credit  for  a  consci- 
entious regard  to  the  obligation  of  an  oath.  Sometimes  they 
may  be  tempted  to  accuse  a  party  who  is  wholly  innocent, 
r  ^o-i  -1  in  order  to  screen  themselves  or  a  guilty  associate  ;  and  if  the 
L  "^  J  *pnsoner  has  been  their  participator  in  crime,  they  may  be 
chsposed  to  colour  and  exaggerate  their  statement  against  him, 
with  a  view  to  hide  their  own  infamy,  or,  by  obtaining  his 
conviction,  to  protect  themselves  from  his  vengeance,  and  se- 
cure the  expected  benefit  (1).     The  doctrine,  therefore,  of  a 

(1)  2  Hawk.  p.  C.  c.  46,  s.  98.  R.  v.  Denman,  7  C  &  P.  152,  and  per  AI- 
Ridder,  1  Sid.  237.     See  posf ,  compe-     derson,  7  C.  &  P.  273. 

lency  of  parties  to  the  suit.  (1)    See   Lord    Hale's   remarks    oa 

(2)  R.  V.  Atwood,  Leach,  Cr.  Ca.  Tongues'  case,  1  Hale,  P.  C.  304.  In 
.521.  7  T.  R.  609.  R.  }..  Durham,  the  earlier  state  trials  the  protection  and 
Leach,  Cr.  Ca.  538.  1  Hale,  P.  C.  countenance  afforded  by  the  courts  to 
303.  See  per  Lord  Ellsnborough,  R.  v.  accomplices,  spies,  and  informers  was 
Jones,  2  Campb.  132.  31  Howell's  St.  often  carried  to  great  lengths  ;  and  pris- 
Tr.  325.     7  T.  R.  609,  S.  P.    Per  Lord  oners  were  sometimes   tauntingly  asked, 


Sect.  2.]   Incompetency  from  Infamy  of  Character,  t^'c.  27 

legal  convictiou  upon  the  uiisu])ported  evidence  of  an  accom- 
plice, has  been  greatly  modified  in  substance  and  effect  ;  and 
it  has  long  been  considered,  as  a  general  rule  of  practice,  that 
the  testimony  of  an  accomplice  ought  to  receive  confirma- 
tion, and  that,  unless  it  be  corroborated  in  some  material  part 
by  unimpeachable  evidence,  the  presiding  judge  ought  to  ad- 
vise the  jury  to  acquit  the  prisoner.  (2) 

It  has  been  laid  down,  that  the  practice,  of  requiring  some  Nature  and 
confirmation  of  an  accomplice's  evidence,  must  be  considered  o°"ihe^p'ra"- 
in  strictness  as  resting  only  upon  the  discretion  *of  the  presi-  »'<^e. 
ding  judge.    (1)      And  this,  indeed,   appears  to  be   the  only    L    ^^  \ 
mode,  in  which  it  can  be  made  reconcilable  with  the  doctrine  disc'reiionTf 
already  stated,  that  a  les^al  conviction  may  take   place  upon  J"'^g*''°''^^ 
the  unsupported  evidence  oi  an   accomplice.       Jiut  it  may  be  law. 
observed,    that  the  practice  in  question  lias  obtained  so  much 
sanction  from  legal  authority,  that  a  deviation  from  it  on  the 
part  of  a  judge,  in  any  particular  case,   would,  at  the  present 
day  appear  singular  and  of  questionable  propriet)^     Although 
the  judge  does  not  in  express  language,  declare,  that  a  case  de- 
pending on  the  unconfirmed  evidence  of  an  accomplice,  is  in- 
sufficient in  law  to  warrant  a  conviction,    but  merely  advises 
the  jury  not  to  place  credit  on  the  evidence  ;    yet,  as  it  is  not 
likely  an  instance  should  arise,  in  which  the  jury  would  dis- 
regard the  advice  so  given,  and  convict  the  prisoner,  the  sub- 
stantial result  appears  to  be  nearly  the  same,  as  if  the  practice 
had  depended  upon  a  rule  of  law,    instead  of  being  the  exer- 
cise of  the  discretion  of  the  presiding- judge.      The  only  dis- 

whellier  they  thought  the  king  would  the  subJRCt,  and  tliat  the  credibility  of 
bribe  his  wiine.sses  ;  see  Langhorne's  an  accomplice,  whether  confirmed  or 
case,  7  St.  Tr.  446.  The  hmguage  of  unconfirmed,  appeals  to  have  been  trea- 
Lord  Holt,  in  the  trials  for  the  Assassi-  ted  as  a  question  for  the  jury.  See 
nation  Plot,  may  probably  be  thought,  Tongue's  case,  6  How.  St.  Tr.  226, 
at  the  present  day,  too  favourable  tow-  per  Sir  O.  Bridgman.  1  Hale,  P.  C. 
ards  accomplices  ;  see  particularly  Char-  334.  See  also  R.  v.  Charnock,  12  How. 
nock's  case,  12  How.  St.  Tr.  14-54.  St.  Tr.  1454.  In  this  case  almost  the 
The  exordium  of  Lord  Howard  to  his  only  material  witnesses  were  accompli- 
evidence  in  Algernon  Sidney's  case,  is  a  ces.  The  observations  of  Lord  Holt,  as 
curious  specimen  of  the  hypocrisy  of  an  to  their  competency  ha\e  been  cited  in 
accomplice.  the  text,  ante,  p.  27,  (and  they  were 
(2)  See  the  case.s  collected  and  stated  said  by  Lord  Lllenborough,  in  R.  v. 
in  the  text,  infra,  ef  seq.  On  the  sub-  Despard,  to  comprise  in  a  few  words 
ject  of  the  Evidence  of  Accomplices,  see  the  good  sense  and  sound  law  on  the 
a  tract  by  the  present  Lord  Chief  Baron  subject.)  In  It.  tj.  Iiudd,  Cowp.  3'39, 
of  Ireland,  published  in  1836,  which  Lord  Mansfield  .-^ays,  "  the  single  testi- 
conlains  an  elaborate  examination  into  niony  of  an  accomplice  is  seldom  of 
the  origin  and  history  of  this  practice,  sutiicieiit  weight  with  the  jury  to  con- 
According  to  the  view  of  this  learned  vict  the  ofiender.  The  subse(|uent  ca- 
vvriter,  the  practice  of  requiring  confirm-  ses  are  stated  in  the  text,  post.  The 
ation  cannot  be  traced  back  more  than  practice  of  requiring  confirmation  lias 
half  a  century.  And  he  observes,  that  been  staled  not  to  extend  to  misdemean- 
ir.  the  earlier  cases  which  have  been  re-  ors.  See  per  Gihbs,  Alt.  Gen.,  11.  v. 
ferred  to  as  authorities  for  the  practice,  Jones,  31  How.  St.  Tr.  315. 
nothing  can  be  found  which  leads  to  tha  (\)  See  per  Lord  Lllcnborougli,  R.  v. 
inferenca  of  any    general    regulation    on  Jones,  2  f  amjib.  I  32. 


2S 


J/ironipcti'tiri/  from  I/i/aint/  of  (J/ui/uiftcr,  i^'c.  [Sect. 


Extent  of 
corrobora- 
tion. 


Confirma- 
tion of  some 
material 
part  suffi- 
cient. 

[*33  J 


Confirma- 
tion as  to 
identity  of 
prisoner. 


Authorities. 


tiiiclion  appears  to  bo,  tliat  if  the  judge  wore  to  submit  a  case 
of  this  nature  to  the  jury  without  any  such  recommendation, 
and  a  conviction  ensued, — or  if  a  jury  were  to  convict  in  op- 
position to  the  recommendation  of  the  judge,  it  could  not  prop- 
erly be  said  in  either  case,  consistently  with  the  authorities 
on  the  subject,  that  the  conviction  would  be  illegal. 

From  the  anomalous  nature  of  the  rule  of  practice  requir- 
ing confirmation,  more  especially  from  the  circumstance  that 
it  is  considered  in  law  to  rest  merely  upon  the  discretion  of 
the  presiding  judge,  and  that  it  appears  in  fact  to  have  origi- 
nated in  the  exercise  of  such  discretion,  it  might  be  expected 
that  some  difference  of  opinion  would  arise  as  to  the  na- 
ture and  extent  of  the  necessary  confirmation.  It  is  clearly 
unnecessary  that  the  accomplice  shoidd  be  confirmed  in  cveri/ 
circumstance  which  he  details  in  evidence  ;  for  there  would 
be  no  occasion  to  use  liim  at  all  as  a  witness,  if  his  narrative 
could  be  completely  proved  by  other  evidence  free  from  all 
suspicion.  (2)  The  *rule  upon  the  subject  which  has  gener- 
ally been  laid  down  is,  that  if  the  jury  are  satisfied,  that  he 
speaks  truth  in  some  material  part  of  his  testimony,  in  which 
they  see  him  confirmed  by  unimpeachable  evidence,  this  may 
be  a  ground  for  their  believing,  that  he  also  speaks  truth  in 
other  parts,  as  to  which  there  may  be  no  confirmation.  (1)  So 
far  all  the  authorities  agree  ;  but  the  point,  upon  which  a  dif- 
ference of  opinion  and  of  practice  appears  to  have  prevailed, 
is  as  to  the  particular  part  or  parts  of  the  accomplice's  testi- 
mony, which  ought  to  be  confirmed. 

In  some  cases  it  has  been  considered,  that  the  confirmation 
ought  to  be  such  as  affects  i\ie  person  of  the  prisoner,  and 
connects  him  directly  with  the  crime  ;  but  in  other  cases  this 
description  of  confirmation  has  been  considered  unnecessary, 
and  it  has  been  held,  that  confirmation  of  the  accomplice  in 
other  parts  of  his  testimony,  which  do  not  affect  the  identity 
of  the  prisoner,  may  be  sufficient  to  entitle  the  accomplice  to 
credit,  and  to  warrant  the  judge  in  leaving  the  case  to  the  ju- 
ry without  a  recommendation  to  acquit. 

In  the  first  case,  iu  which  this  question  appears  to  have , 
been  expressly  raised,  two  prisoners  had  been  convicted  on 
the  evidence  of  an  accomplice,  who  was  confirmed  as  1o  the  cir- 
cumstances attending  the  offence,  but  not  as  to  the  identity  of 
the  prisoners,  and  the  judges  were  unanimously  of  opinion,  that 
the  conviction  was  good,  upon  the  general  ground  already 
mentioned  ;  namely,  that  a  prisoner  may  legally  be  convicted 


(2)  See  report  of  the  Trials  at  York, 
on  Special  Commission,  1813,  pp.  16, 
17,  50,  150,  165,  201,  pariiculariy  the 
charges  of  Thompson,  C.  B.,  in  R.  ». 
Swallow,  and  of  Le  Blanc,  J.,  in  R.  v. 
Mel  lor. 


(1)  See  authorities  cited  in  the  pre- 
ceding note,  and  Despard's  case,  28 
How.  St.  Tr.  4SS.  and  per  Lord  Ellen- 
borough,  31  How.  St.  Tr.  325.  R.  v. 
Barnard,  I  Car.  &  P.  88. 


Sect.  2.]        (Jf  the  Evidence  of  Accomplices,  d^'c.  29 

upon  the  unconfirmed  evidence  of  an  accomplice.  (2)  In  a 
case  occurring  shortly  afterwards,  a  similar  decision  took  placc^ 
and,  as  it  appears,  on  the  same  ground.  At  the  trial  the  court 
observed,  that  the  practice  of  rejecting  an  unsupported  accom- 
plice was  rather  a  matter  of  discretion  with  the  judge,  than  a 
rule  of  law  ;  and  the  case  having  been  left  to  the  jury,  and 
the  prisoner  convicted,  *the  judges  afterwards  held  the  con-  [  *34  ] 
viction  good.  (1)  The  same  general  doctrine  was  subsequent- 
ly laid  down  in  the  case  of  R.  v.  Jones  (2)  by  Lord  EUenbo- 
rough,  who  there  referred  to  a  case,  in  which  the  judges  were 
of  opinion,  that  four  prisoners  had  been  properly  convicted  up- 
on the  testimony  of  an  accomplice,  whose  evidence  had  been 
confirmed  as  to  three  of  the  prisoners,  but  not  as  to  the  fourth. 
And  in  the  report  of  the  York  Trials  under  a  special  commis- 
sion, it  is  laid  down  by  C.  B.  Thompson,  that  "  confirmation 
need  not  be  of  circumstances  which  go  to  prove,  that  the  ac- 
complice speaks  truth  with  respect  to  all  the  prisoners,  (when 
several  are  tried,)  and  with  respect  to  the  share  they  have 
each  taken  in  the  transaction  ;  for  if  the  jury  are  satisfied, 
that  he  speaks  truth  in  those  parts  in  which  they  see  unim- 
peachable evidence  brought  to  confirm  him,  that  is  a  ground 
for  them  to  believe  that  he  speaks  also  truly  with  regard  to 
the  other  prisoners,  as  to  whom  there  may  be  no  confirma- 
tion." (3)  Again,  in  a  later  case,  where  an  accomplice  was 
confirmed  as  to  one  of  several  prisoners  jointly  indicted,  but 
not  as  to  the  others,  Bayley,  J.,  told  the  jury,  that  if  they  were 
satisfied  from  the  confirmation,  that  the  accomplice  was  a  cred- 
ible witness,  they  might  act  on  his  testimony  with  respect  to 
the  prisoners,  as  to  whom  he  had  not  been  confirmed,  and 
they  were  convicted.  (4)  In  Birkett's  case,  (5)  on  a  case  re- 
served, the  judges  were  of  opinion,  that  an  acccomplice 
did  not  require  confirmation  as  to  the  person  charged  by  him, 
if  he  Avere  confirmed  in  the  other  particulars  of  his  statement. 
And  in  a  very  recent  case  at  the  Old  Bailey,  before  Lord  Den- 
man,  Mr.  Justice  Park,  and  Mr.  Baron  Alderson,  when  the 
counsel  for  the  prosecution  stated,  that  he  should  not  be  able 
to  confirm  an  accomplice,  who  was  to  be  called  as  a  witness, 
with  regard  to  the  persons  of  the  prisoners,  but  only  as  *to  the    [  *35  ] 

(2;  R.  V.  Auvool!,  Le;ic!i,  C.  C.  521.  plicH  w;is  legal  evidence,  but    thougiit  it 

7  'i".  11.  (j.);),  ciied  ante  too  dangerous  to    suffer  a    nonvictioii    to 

d)  R.  «.  Duvliani,  L(i;icli,  C.  C.  53-!.  Like  pl.ico  on  such   testimony,  and    the 

II  was,  however,   said  in  this  case    that  prisoners  were  acquitted, 
ihe  witness  (a  receiver)    was    rather    an  (2)  2  Campb.  X'i'l.     31  How.  St.  'l"r. 

acce!-fl:iry  .-ifler  the  fact   tlinii  an  accoin-  .325. 

piice  in  ibe  fact.     In    11.  v.    Sinitti    and  (3)   R.    v.  Swallow,    IIow.    St.    'I'r. 

another,    reported  in   a  note  to  tlie    last  971. 

ca-e,  where    the  only    witness   atiectin"  (4)   R.  v.  Dawbar,  3  StarU.   N.  P.  ('. 

tlie  prisoners    was    an    accomplice,    the  34,  and  see  R.  v.  IJarnard,  I  Car.  &,   1'. 

Conrf  admitted  the  rule  of  law,  that  the  88.     Per  lIullocU,  li. 
uncorroborated  testimony  of    an  accom-         (5)   Russell  &  R.,  C.  C.  252. 


30  Of  Die  Evidence  of  Accomplices,  4*c.  [Ch.  4. 

general  circumstances  of  the  case,  liOrdDenman  said,  he  con- 
sidered,  and  he  beheved  his  learned  brothers  concurred   with 
him,  that  it  was  altogether  for  the  jury,  Vvdio  might,    if   they 
])ieased,  act  on  the  evidence   of  the   accomplice  without  con- 
firmation ;    but  observed,    that   a  person  so   situated,  would 
not  be  likely  to  receive  any  great  degree  of  credit.  (1) 
iiesuii  of         The  authorities,  above   stated,  appear  to  shew,  as  it  has 
iiuiiicriiics    been  before  observed,  that  the  rule,  which  requires  some  con- 
aj.new-   fj^.,^-,.^j,)n  Qf  r^j^  accomplice  to  be  given,    is  to  be  considered 
not  as  a  strict  rule  of  law,  but  as  a  practice  depending  on  the 
discretion  of  the  presiding  judge.     And  these  authorities  also 
shew,   that  judges,  in  the  exercise  of  their   discretion,  have 
generally,  if  not  always,  considered  that  some  confirmation 
ought  to  be  given,  but  have  not  considered  evidence,  atfecting 
the  identity  of  the  prisoners   charged,  to  be  essential  for   the 
purpose  of  confirmation. 
Recent  de-       On  the  Other  hand,  there  are   several  recent  decisions,  in 
which  judges,  in  the  exercise  of  their  discretion,  have  thought 
that  confirmatory  evidence  of  identity  ought  to  be  given. 

Thus  in  the  case  of  R.  v.  Addis,  (2)  an  accomplice,  who 
was  the  principal  witness,  was  corroborated  as  to  collateral 
facts,  none  of  which  tended  to  connect  the  prisoner  with  the 
accomplice,  or  with  the  transaction  :  Mr.  Justice  Patteson  ob- 
served, that  the  corroboration  ought  to  be  as  to  some  fact  or 
facts,  the  truth  or  falsehood  of  which  would  go  to  prove  or 
disprove  the  offence  charged  against  the  prisoner.  And  in  a 
subsequent  case,  (3)  where  it  was  proposed  on  the  part  of  the 
prosecution,  to  confirm  the  accomplice  as  to  the  mode,  in 
which  the  felony  was  committed,  Mr.  Justice  Williams  said, 
[  *36  ]  that  something  ought  to  be  proved  *which  would  tend  to  bring 
the  matter  home  to  the  prisoners,  and  that  confirming  the  ac- 
complice as  to  the  mode,  in  which  the  felony  had  been  com- 
mitted, was  not  enough  to  entitle  his  evidence  to  credit  so  as  to 
aftect  other  persons  ;  that  in  fact  this  would  be  no  confirma- 
tion at  all,  since  every  one  would  give  credit,  to  a  man  avow- 
ing himself  a  principal  felon,  for  at  least  knowing  how  the  fel- 
ony was  committed.  In  a  later  case,  on  an  indictment  against 
t\vo  persons,  the  same  doctrine  was  laid  down  by  Mr.  Baron 
Alderson,  ( 1 )  who  pointed  out  the  distinction  between  confir- 
mation as  to  the  circumstances  of  the  felony,  and  confirma- 

(1)  If.  r.  ITustinj^s,  7  Car.  &  P.  152.  (2)  6  Car.  &.  P.  388. 

In  this  case,  ilie  evidence  for  the    prose-  (3)  6  Car.  &.  P.  595.     R.  v.     Webb, 

cution  was  gone  into,  alter  tlie  statement  Seethe    observation  of  C.  L5.     .Toy,    on 

that  confirmation  could  not   be   given  as  this  and  the  preceding  case. — Preface,  p. 

to  the  persons  of  the  prisoners  :  but  the  iii. 

prisoners  were  acquitted,  the  subsequent  (1)  R.  v.  W'lWies,  7  Car.  S;  P.  272. 
evidence  being  contradictory,  ratlier  than 
confirmatory  of  the  accomplice. 


Sect.  2.j        Of  the  Evidence  of  Accomplices^  ^'c.  31 

tion  affecting  the  individuals  charged  ;  the  former  only  proves 
that  the  accomplice  was  present  at  the  commission  of  the  of- 
fence ;  the  latter  shews  that  the  prisoner  was  connected  with 
it.  In  summing  up,  the  Judge  observed,  that  confirmation 
merely  as  to  the  circumstances  of  the  felony,  was  really  no 
confirmation  at  all  ;  that  it  was  true,  the  jury  might  legally 
convict  on  the  evidence  of  an  accomplice  only,  if  they  could 
safely  rely  on  his  testimony,  but  that  he  always  advised  ju- 
ries not  to  act  on  the  evidence  of  the  accomplice,  unless  con- 
firmed as  to  the  particular  person  charged  with  the  offence. 
After  adverting  to  the  facts  of  the  case,  as  affecting  the  two 
prisoners,  the  same  Judge  stated  to  the  jury,  that  if  they 
thought  the  accomplice  was  not  sufficiently  confirmed  as  to 
one,  they  would  acquit  that  one,  and  that  if  they  thought  he 
\vas  confirmed  as  to  neither,  they  would  acquit  both.  In 
another  case,  (2)  where  a  thief  and  receiver  were  jointly  indict- 
ed, the  same  learned  judge  expressed  his  opinion,  that  con- 
firmation as  to  the  thief  did  not  advance  the  case  against  the 
receiver.  And  in  a  former  case  of  a  similar  description, 
where  there  was  a  slight  confirmation  as  to  the  receiver,  but 
none  as  to  the  principal  felon,  Littledale,  J.,  thought  the  case 
failed  altogether,  and  that  the  accomplice  ought  to  be  confirm- 
ed as  to  the  principal,  before  the  jury  could  be  asked  to  believe 
the  witness's  testimony.  (3) 

*From  the  class  of  cases  which  have  been  last  cited,  it  will  ^^esuit  of 

,  ,  .  ^  ,    .      ,  .  .        Uiese  cases. 

appear,  that  the  recent  practice  of  several  judges,  m  exercis-  r  #37  ] 
ing  their  discretion  as  to  the  evidence  that  ought  to  be  addu- 
ced, in  order  to  entitle  an  accomplice  to  credit,  has  been  to  re- 
quire a  confirmation  upon  some  point  affecting  the  person  of 
the  prisoner  charged  :  and  that  when  several  prisoners  are 
jointly  tried,  confirmation  is  to  be  required  as  to  all  of  them, 
before  all  can  be  safely  convicted.  Indeed,  it  would  be  diffi- 
cult to  assign  a  satisfactory  ground  for  requiring  confirmation 
as  to  the  person  of  a  prisoner  indicted  alone,  and  dispensing 
with  confirmation  as  to  prisoners  jointly  indicted  :  the  same 
reasons,  which  render  confirmation  necessary  in  the  former 
case,  appear  to  require  it  in  the  latter ;  if  a  distinction  between 
the  two  cases  were  to  be  allowed,  a  prisoner's  acquittal  or  con- 
viction, upon  an  accomplice's  testimony,  might  depend  upon 
the  mere  accident,  of  his  being  indicted  alone,  or  jointly  with 
others.  It  will  be  observed,  that  it  is  still  laid  down  by  judg- 
es, even  when  calling  for  this  personal  confirmation,  that  the 
jury,  if  they  think  proper,  may  legally  convict  upon  an  accom- 
plice's testimony  unsupported  ;   and  that,  in  the  absence  of 

(2)  R  V.  .Alnores,  7  Car.  &  P.  270.  ry  to  estahli.sh  tlie  guilt  of  the   principal 

(3)  R.  V.  Wells,  Mood.  &  Ma.  N.  W  by  contiimirig  the  accomplice  as  to  him, 
C.  326,  the  ground  of  this  decision  ap-  before  the  qucslioii  of  the  guilt  of  llie  le- 
pears  to  have  been,  that  it  vvaa    nccessa-  ceiver  could  ari;'<e. 


32  Of  the  Evidence  of  Accomplices,  S^'c.  [Ch.  4. 

such  evidence,  they  do  not  withdraw  the  case  from  the  jury, 
hut  only  advise  them  not  to  give  credit  to  the  accomphce.  {a) 
Disiinrtion  Whether  the  rule  of  practice,  which,  as  we  have  seen,  has 
confimia-  hecu  recciitly  followed,  will  be  adopted  as  a  general  rule,  by 
lion,  as  lo  "which  all  iudgcs  will  consider  themselves  bound,  may  per- 
stances,  haps  uot  be  wholly  free  from  doubt,  but  the  weight  of  the  la- 
and  as  to     ^g^.  authorities  appears  to  be  in  favour  of  such  a  rule.   The  dis- 

tlie  person.  J^-i^  _  .  .  ,  .    , 

tinction  between  confnmation  as  to  the  manner,  m  which  an 
offence  was  committed,  and  as  to  the  parties,  by  whom  it  was 
committed  is  of  obvious  importance  :  and  although  cases  may 
sometimes  arise,  in  which,  from  the  confirmation  of  an  ac- 
complice as  to  the  circumstances  attending  the  commission 
of  the  crime,  a  jury  may  be  led  to  conclude  that  the  accom- 
plice speaks  truth  with  regard  to  the  person  charged,  still,  as 
the  two  points  are,  in  general  essentially  different,  great  caution 
is  to  be  used  in  drawing  such  a  conclusion.  If  the  wit- 
[  *38  1  ness  has  really  been  an  accomplice,  as  he  states  himself  to  *be, 
he  must  be  acquainted  with  the  manner  in  which  the  offence 
was  committed  ;  and,  in  describing  the  manner,  it  would  not 
in  general  be  the  interest  or  the  desire  of  an  accomplice  to 
swear  falsely.  But,  with  respect  to  persons  concerned,  there 
may  be  strong  reason  to  infer  the  existence  of  motives,  which 
would  induce  an  accomplice  to  fabricate  or  pervert  some  facts 
against  a  party  charged,  notwithstanding  that  other  facts,  re- 
lated by  him,  may  be  indisputably  true,  or  even  notwithstand- 
ing the  general  consistency  of  his  story  may  be  clearly  estab- 
hshed.   (1) 

It  appears  that  the  practice  of  requiring  confirmation,  when 
Confirma-    the  case  for  the  prosecution  is  supported   by  an  accomplice, 

lion  by 

whom, 

(1)     This    subject,    vvhicli    lias    been  inp;    confmnnlion,  timy   he   siitinfied    hy 

treated    ut    considerable     hjiigtli    in    the  cdiioboiating  |);uls  o!   the    ;i(;ci)iii[iiices' 

text,  on  account  of  its  interest    iind     iiii-  •evidence,  not  ;ifl'eciiiiji  the  poisons  of  ilie 

portance,  lias    created    much    ditierence  prisoners,      jn  ihe  pr(!race,    the    ;e;irned 

oT  opinion  at    the     Iri.sh    bar.       See    an  writer  states,    that    he  was    induced     to 

anonyiMoas  pamphlet  by  an  Irisli   barris-  publish    his    treatise  in    ccmdequcnice    ol 

ter,  Uubliii,  1824  ;  the  object  of  which  the    cases  of  I».    v.    Addis,    and    !!.    v. 

is  to  prove,  that  some  evidence    of  per-  \V'el)l),  cited  ante,  p.  3.5.     I'ut  the  suh- 

sonal  identity    ought  to    be    given  in    all  sequent  cases,  to  tlie  same    ellect,    were 

cases.     And  see  the  tract  of  C.  B.    Joy,  probably  not  published,  when    the  tract 

before  referred  to,  which,    though    only  of  the  Chief  Raroii  appeared  ;  thev    are 

recently     published,    was  written    some  not  referred  to  by  him,    neither  does    he 

years    ago,    in    answer    to    the    former  allude   to     the    previous    case    of  M.  v. 

pamphlet.     The  Lord  Chief  I'aron  con-  \V'(;ils,  !\Io.  &  Tda.  '.j2'6,  ante,  p.  3fi. 
siders,  that   the  rule  of  practice,    requir- 


( 
oomes 


a)  An  accomplice  by  his  own  confession  ;  his  testimony  is  therefore  suspicious — it 
—  .Ties  from  a  tainted  source  and  needs  contirmatioti.  'I'lie  piosecutor  therefore  may 
support  the  testimony  by  proof  that  the  witness  has,  on  previous  occasions,  given 
the  same  relation  to  which  he  has  testified.  The  People  v.  Vane,  12  \Veiid.  78. 
A  party  to  a  conspiracy  to  obtain  goods  is  viewed  with  suspicion  ;  hut  the  evidence 
ii3  incompetent.     Moore  v,  Tracy,  7  id.  229. 


Sect.  2.]        Of  tke  Evidence  of  Accomplices,  i^g. 


33 


applies  equally,  when  two  or  more  accomplices  are  brought 
forward  against  a  prisoner.  In  a  case  in  which  two  accom- 
})lices  spoke  distinctly  to  the  prisoner's  guilt,  Mr.  Justice  Lit- 
tledale  told  the  jury,  that,  if  their  statement  were  the 
only  evidence  against  him,  he  could  not  advise  them  to 
convict;  observing,  that  it  was  not  usual  to  convict  on  the 
evidence  of  one  accomplice  without  confirmation,  and  that, 
in  his  opinion,  it  made  no  ditference,  whether  there  were 
more  accomplices  than  one.  (2) 

*It  appears  to  have  been  held,  in  a  late  case,  that  a  confir- 
mation by  the  wife  of  an  accomplice  would  be  insulficient : 
it  was  said,  that  the  wife  and  the  accomplice  must  be  consid- 
ered as  one  for  this  purpose.   (1) 

In  another  recent  case,  m  which  the  prisoner  was  indicted 
for  manslaughter  at  a  fight,  it  was  objected,  that  all  persons, 
who  had  been  present,  were  jirincipals  in  the  second  degree, 
and  that  their  evidence  ought  to  receive  confirmation  as  in  the 
case  of  accomplices,  but  Mr.  Justice  Patteson  was  of  opinion, 
that  they  were  not  such  accomplices  as  would  require  any  fur- 
ther evidence  to  confirm  them.  (2) 


Several  ac- 
complices. 


[*39] 

Wife  of  ac- 
complice. 


Accompli- 
res,  who 
are. 


Section    III. 

Evidence  of  Informers,  and.  Self-discrediting  Witnesses. 

There  is  another  class  of  witnesses,   who   cannot  properly  i-'n'orm- 
be  considered  as  coming  within  the  description  of  accomplices, 
or  as  partaking  of  their  criminal  contamination  ;  namely,    per- 
sons, who  have  entered  into  communication  with  conspirators, 
with  an  original  purpose  of  discovernig    their  secret    designs, 


(2)  R.  V.  Noakes,  5  Car.  &  P.  r>26. 
O.  B.  cor.  Lialedale,  J.,  Bollaiid,  .1., 
and  Alderson,  J.  In  the  work  ofC.  I» 
.loy,  p.  100,  et  seq.  the  learned  writer 
expresses  a  strong  opinion,  adverse  to  the 
ciiurse  pursued  in  the  above  case.  lie 
does  not,  however,  refer  to  the  case,  but 
on  the  contrary  states,  that  the  question 
had  not  undergone  consideration.  11.  v. 
Noakes  was  decided  in  1832,  after  tlie 
learned  (".  Baron's  work  was  written, 
hut  some  years  before  its  publication. 
The  (J.  Haron  refers  to  the  speeches  of 
the  J^oliciior  General  and  Mr.  Serjeant 
Best,  in  11.  V.  Despard,  2S  How.  St. 
Tr.  428.  See  on  this  subject  the  obser- 
vations of  the  writer  of  tlie  anonymous 
pamphlet  upon  accomplices  before  re- 
i'erred  to,  as  to  the  trial  of  the  incendia- 
ries of  WJIdgoose  Lodge,  Dundalk. 
Spring  Ass.  1818,  where  a  house  with 
its  inmates  was  destroyed  by  fire  by  up- 

5 


wards  of  a  Imndred  persons,  marching  m 
three  parties  from  di>tant  points  not  con- 
nected with  each  other,  and  the  accom- 
plices vvere  selected  from  the  different 
parlies.  And,  further,  on  the  general 
.subject,  see  Sir  T.  Wiiherington's  argu- 
ment, ■)  liow.  176.  Discussion  in  Sa- 
ver's case,  IC  How.  158.  Sir  R.  At- 
kyn's  remarks,  9  How.  721,  as  to  the 
evidence  of  an  indicted  accomplice. 

Murphy's  case,  19  How.  702.  Sir  J. 
Copley's  remarks  in  Watson's  case,  32 
How.  ,)13.  Lord  Ellenborough's  ciiarge 
in  Watson's  case,  32  How.  583.  Lord 
'I'enterden's  ciiarj^e  in  the  cases  of  the 
Cato-slreet  Conspiracy,  33  How.  6S9. 

(1)  U.  «.  Neale,  7  Car.  &  P.  168, 
per  Park,.l. 

(2)  1!.  V.  Hargraves,  5  Car.  &  P.  p. 
170;  and  see  the  cases  referred  to  in 
sect.  3,  aupia. 


34  Of  the  Evidence  of  Accomplices,  &cc.         [Ch.  4. 

and  of  disclosing  them  for  the  benefit  of  the  pubhc.  (3)     The 
existence  of  such  original  purpose  on  their  part  is  best  evinced 
by  a  conduct,  which  prechides  them  from  wavering  or  swerv- 
*40  1   ^"S  ^^"°"^  ^*^®  *discharge  of  their  duty,  if  they  might  otherwise 
^  '    be  disposed  so  to  do  ;  as,  when  the  witness  voluntarily  makes 

an  early  disclosure,  and  thenceforth  acts  in  pursuance  of  direc- 
tions given  to  him,  as  to  the  part  which  he  is  to  bear  in  the 
general  confederacy.  Such  a  witness  is  not  to  be  considered 
in  the  light  of  an  accomplice,  although  perhaps,  on  other 
grounds,  no  small  degree  of  prejudice  or  disfavour  may  attach 
to  him  ;  for  certainly,  no  man  of  honour  or  right  feeling  would 
continue  to  associate  with  his  companions^  apparently  forward- 
ing the  purposes  of  a  conspiracy,  with  the  intention  afterwards 
of  betraying,  and  giving  them  up  to  justice.  Whatever  may 
be  the  merit  or  demerit  of  this  species  of  conduct  on  other 
grounds,  such  a  witness  is  not,  strictly  speaking,  an  accom- 
plice. (1)  In  prosecutions  under  the  laws  against  coining  and 
uttering  counterfeit  money,  the  proof  of  the  oflence  often  rests 
in  a  great  measure  on  the  testimony  of  some  person,  employed 
by  the  agents  of  the  mint  for  the  purpose  of  obtaining  the 
counterfeit  coin  under  feigned  pretences.  This  testimony  is 
usually  supported,  and  very  properly,  in  some  material  facts, 
by  other  unimpeachable  evidence. 

The  objection   to    the   competency  of  informers,   on    the 
ground  of  being  entitled  to  a  penalty  on  the  conviction  of  the 
offender,  against  Avhora  they  give  information,  will  be  consid- 
ered in  another  part  of  this  work, 
"ii  ^^''"*^his      •'^^'  J^sti*^^  Lawrence  observes,  (2)  that  the  constant  prac- 
owir.iis"hon-  tice  of  examining  accomplices  shews,    that  the  mere  circum- 
*'^'^'"  stance  of  a  man's  having  represented  himself  as   having  done 

things  inconsistent  with  common  honesty,  is  not  sufficient  to 
reject  his  testimony,  however  it  may  weaken  and  impeach  it. 
The  maxim  of  the  civil  law,  nemo  allegans  suam  turpitudi- 
nem  est  audiendus,  would  not  admit  of  such  a  practice.  But 
this  maxim  is  of  a  nature  so  exclusive  in  its  operation,  and  at 
the  same  time  so  vague  and  undefined,  that  our  Courts  of  law 
have  properly  rejected  it  as  a  rule  of  evidence. (a) 

(3)  Partofl-ord    Elleiiboroujrli's   :ul-  (1)  See  28  Howell's  St.  Tr.  489. 

dress  to  the  jury  in    Despard's    ciise,  28  (2)  Jordiiiiie  v.  LashbrooUe,  7  T.  R. 

Howell's  St.  Tr.  489.  601. 

(a)In  a  prosecution  for  a  divorce  the  paramour  may  be  admitted  to  prove  the  adul- 
tery. Brown  u.  Brown,  5  Mass.  320  ;  Moulton  r.  Moulioti,  13  Maine,  110.  In 
the  first  case  cited,  llie  paramour  was  ollered  as  a  witness  to  prove  the  charge, 
and  the  Court  said  he  tniglit  be  sworn  ;  but  if  it  should  a()pear  from  his  testimony 
that  he  was  the  paramour,  they  shouid  recommend  to  the  attorney  for  the  govern- 
ment, to  lay  the  ca«e  before  the  grand  jury,  that  he  niigiit  be  indicted.  If  a  wit- 
ness, the  court  added,  they  shotild  inquire  of  him  with  whom  the  crime  was  com- 
mitted. 

If  a  witness  state  a  particul::r  fact  in  favor  of  the  respondent,  he  will   be   bound, 


Sect.  3.j      Of  the  Evidence  of  Accomplices,  ^c.  35 

*In  the  case  of  Walton  v.  Shelley  (1),  indeed,  which  was  an  J^,'£ni'" 
action  upon  a  bond,  given  by  the  defendant  in   consideration  an  insiru" 
of  the  plaintiff's    dehvering  up   certain    promissory  notes,  the  "p^'.^  -, 
Court  of    King's  Bench  held,  that    the  indorser  of  one  of  the  lijorser. 
notes  ought  not  to  be  allowed   to    prove  the  consideration  of 
the  note  usurious,  on  a  supposed    principle  of  public  policy, 
that  no  party  who  has  signed  a  paper  or  deed,  and  has,  by  his 
signature,  given  it  credit,  shall  ever  be  permitted  to  give  testi- 
mony to  invalidate  that  instrument.      This   appears  to  have 
been  the  first  case  in  support  of  such  a  rule  :  but  the  contrary 
principle  seems  now  to  be  fully  established. 

In  the  later  case  oi  Jordaine  v.  Lashhrooke,  (2)  this  subject 
was  very  fully  discussed  ;  and  the  court  there  determined,  that 
in  an  action  on  a  bill  of  exchange  against  the  acceptor,  the 
payee,  who  was  also  indorser,  was  a  competent  witness  for  P^yea. 
the  defendant,  to  prove  that  the  bill,  which  was  unstamped, 
and  purported  to  be  drawn  at  Hamburgh,  was,  in  fact,  drawn 
in  London,  and  therefore  void  for  the  want  of  a  stamp.  Nor 
is  there  any  distinction  with  respect  to  negotiable  securities, 
when  the  point  to  be  considered  is  the  competency  of  the 
witness :  for  supposing  what  he  has  done,  in  putting  such  in- 
struments into  circulation,  to  be  ever  so  great  a  fraud  and  ev- 
er so  mischievous,  he  still  is  a  witness  unconvicted  of  any 
crime,  and  without  interest,  and  not  more  devoid  of  principle 
than   many  who   have  been  mentioned  as  constantly  admit- 

(1)  IT.  R.  296.     "  Testes  qui    ad-         (2)  7  T.  R.  601.  Ashurst,  J.  contra. 
versus  fidein   suam    testationis  vacillant,     See  Jones  v.  Brooke,  4  Taunt.   464.     1 
Hudiendi  non  sunt,"  was  the  maxim    of    Ves.  &.  Benm.  208. 
the    civil    law.  Domat.    book  3,    tit.  3, 
sect.  6,  art.  12. 

on  his  cross  examination,  lo  state  ail  the  circumstances  relating  to  that  fact,  al- 
though in  80  doing  he  may  expose  himself  lo  a  criminal  charge.  It  is  clearly  inad- 
missible to  permit  a  witness  to  give  a  partial  account  of  his  knowledge  of  a  transac- 
tion, suppressing  all  the  circumstances,  whether  the  evidence  is  to  be  used  in  favor 
of,  or  against  the  slate.  4  N.  H.  R.  562. 

Although  a  witness  cannot  be  compelled  to  answer  any  question  which  has  a 
tendency  to  expose  him  to  penalties,  or  lo  any  kind  of  punishment;  but  if  he  is 
willing  to  make  disclosures  which  involve  his  own  character,  and  may  expose  him 
lo  punishment,  he  is  at  liberty  to  do  it.  In  Southard  v.  Rexford,  6  (,"ovven,  254, 
which  was  an  action  for  breach  of  promise  of  marriage,  the  defendant  was  allowed 
to  agk  the  witness  in  general  terms,  if  he  over  knew  of  any  person  having  criminal 
connexion  with  the  plaintiff.  The  Court  said  : — "  'l"he  witness  was  not  bound  to 
answer  the  question,  so  far  as  the  answer  would  criminate  hitnself ;  and  it  was  the 
duty  of  the  court  lo  iipprise  him  of  hi^  right  in  ih-il  respect." 

Although  the  Declaration  of  Right.s  in  Ma.ssachusetls  provides  (I2thart.)  that 
"  no  subject  shall  be  held  lo  answer  for  any  crime,  &i:.  or  be  compelleil  to  accuse, 
or  lurnish  evidence  against  himself;"  yet  in  I5ull  «  Loveland,  10  Pick.  9,  the 
Court  decided  that  a  witness  may  be  called  and  examined  in  a  mailer  pertinent  to 
the  issue,  where  his  answers  will  not  expose  him  to  a  ciiminal  prosecution,  or  tend 
to  subject  him  to  a  penally  or  forfeituie,  although  they  njay  otherwise  adversely 
aft'ect  his   pecuniary  interejit.     See  also  4  G.  &,  .F.  27:'.  ;  4  S.  ^  R.   307. 

A  party  to  a  fraud  is  admitted  lo  prove  the  fraud,  I  Kawle,  141. 


Subsrribiii 
witness. 


36  Of  the  Evidence  of  Accomplices,  t^v.  [Ch.  4. 

ted.    (3)    («.)  And  this  rule  up})lies  to  all  cases,  civil  as  well  as 
criminal,   in  which  a  witness's    character  is  open  to  objection 
from  the  turpitude  or  impropriety  of  his  conduct.    Thus  in  an 
Person  hri-  ^ictiou  uuder  the  statute  2  Geo.  2,  c.  24,  for  bribery  at  an  elec- 
I'ed.  tioii,  a  j)erson  wlio  has  received  a  bribe    may  be  a  competent 

witness  against  the  defendant.  (4)  And  one  who  has  set  his 
name  as  subscribing  *witness  to  a  deed  or  will,  is  admissible 
[  *42  ]  to  impeach  the  execution  of  the  instrument ;  (1)  although  his 
evidence  is  to  be  received  with  all  the  jealousy  necessarily 
attaching  to  a  witness,  who,  upon  his  oath,  asserts  that  to  be 
false,  which  he  has  by  his  solemn  act  attested  as  true.  (2) 
Other  in-  lu  au  action  to  recover  the  price  of  goods  supplied  to  a  ship, 

stances.  against  a  party  whose  name  appeared  on  the  register  as  part 
owner,  it  was  decided,  that  a  witness,  upon  whose  oath  the 
register  had  been  obtained,  was  competent  to  prove,  that  he 
had  inserted  the  defendant's  name  therein  without  his  privity 
or  consent ;  and  the  objection,  that  the  witness's  evidence 
was  at  variance  with  his  oath,  only  would  affect  his  cred- 
it. (3)  A  person,  who  has  joined  in  an  assignment  of  a  ship,  is 

(3)  7  T.  R.  611.  By  this  case  of  was  also  objected,  that  he  was  incompe- 
Jordaine  v.  Lashbrooke,  the  case  of  Ad-  tent  from  interest,  as  in  case  of  a  con- 
ams  i>.  Lingard,  1  Peake,  N.  P.  C.  117.  viction  he  would  have  been  indemnified 
and  some  other  cases  of  the  same  kina  under  the  act.  As  to  this  objection,  see 
are  overruled.  post. 

(4)  Bush  i>.  Railing,  Say.  2S9,  cited  (1)  Lower.  JolifTe,  1  Black.  Rep. 
by  Lord  Mansfield,  Cowp.  19f)  Mead  365.  7  T.  R.  604,  611.  6  East,  19.5. 
V.  Robinson,    VVilles,    423,  and    n.  (c)  (2)   1  Ves.  &  Beam.  208. 

Ibid.  425.     Reward  v.  Shipley,  4  East,  (3)   Rands    v.  Thomas,    5  M.  &    S. 

180.     Besides  the  objection  arising  from     244. 
the  witness's  conduct  ia  these  cases,   it 


(a)  In  this  country,  the  weight  of  authority  seems  to  be  different.  Churchill  v. 
Sueter,  4  Mass.  156  ;  Fox  v.  Whitney,  16  id.  118  ;  Packard  v.  Richardson,  17 
id.  122.  The  rule  is  not  confined  to  actions  brought  upon  the  note  itself,  but  to  all 
others,  where  its  validity  conies  collaterally  in  question.  4  Greenl.  R.  191.  But 
it  is  confined  to  negotiable  instruments.  9  S.  &i  R.  236  ;  2  Binn.  165  ;  2  Dall. 
1911,  and  2  Hawk.  R.  235.  And  it  only  applies  to  what  occurred  bffore  the  party 
put  his  name  to  the  instrument,  n<it  after.  Per  Porter,  J.  10  Martin,  IS.  He 
may  prove  subsequent  facts  which  do  not  inipeach  the  original  legality  of  the  in- 
strument. Powell  V.  Hanson,  7  Mass.  470  ; — lo  prove  payment.  2  N.  H.  R.  212. 
See  also  Bush  v.  Ellsworth,  6  Ohio,    16S. 

The  incompetency  of  a  party  to  a  negotiable  note  to  invalidate  it  by  his  own  tes- 
timony has  also  been  settled  by  the  highest  authority  in  this  country.  Bank  of  Uni- 
ted States  I).  Dunn.  6  Pet.  51.  Having  given  it  the  sanction  of  his  name,  and 
thereby  added  to  the  value  of  the  instrument,  by  giving  it  currency,  he  shall  not  be 
permitted  to  testify,  that  the  note  w.is  given  for  a  gambling  consideration,  or  under 
any  other  circumstances  which  would  destroy  its  validity. 

In  (.irilfith  w.  Reford,  1  Rawle,  196,  which  was  an  action  against  the  endorser  of 
a  promissory  note,  it  was  held,  that  the  drawer  was  incompetent  to  prove  that  the 
consideration  of  the  note  was  usurious. 

In  Taylor  v.  Beck,  3  Rand.  R.  316,  the  being  an  endorser  of  a  note  was  not  of 
itself  a  sufficient  objection  to  the  witness'  competency.  In  Carleton  v.  Witcher,  5 
N.  H.  R.  197,  where  the  action  was  against  one  of  several  makers  of  a  negotiable 
note  ;  Held,  that  another  maker  was  a  competent  witness  for  the  defendant,  he 
having  been  released  from  alt  claim  to  contribution,  to  prove  the  consideration  of 
the  note  illegal.     But  see  Montgomery  u.  Walker,  9  S.  &  R.  236. 


Sect.  3. J        Of  the  Evidence  of  Accomplices,  &;c.  37 

a  competent  witness  to  prove  that,  in  point  of  fact,  he  had  no 
property  in  the  vessel  at  the  time  of  the  assignment.  (4)  A 
vendor  of  property  is  competent  to  prove,  that  he  had  no  title 
in  the  lands  pretended  to  be  sold  and  conveyed.  (5)  [a)  And, 
as  we  have  already  seen,  a  witness  who  admits,  that  npon  a 
former  proceeding  he  swore  falsely  with  regard  to  the  matters 
upon  which  he  is  examined,  is  not  incompetent,  however  the 
objection  may  affect  his  credit.  (6)  (6) 


^CHAPTER,  V. 

OF  THE   INCOMPETENCY    OF  WITNESSES  FROM  INTEREST. 


[*43  ] 


^ 


The  fourth  ground  of  incompetency  is  interest. 

It  is  a  general  rule,  that  all  persons  interested  in  the   event  General 
of  a  cause,  (c)  are  to  be  excluded  from  giving  evidence  in  favor  f"'^- 
of  that  party,  to  which  their  interest  inclines  them.  This  rule 
is  founded  upon  a  presumed  want  of  impartiality  in  an   inter- 
ested witness.     "  When  a  man,"  says  C.  B.  Gilbert,  (1)  "  who 

(4)  ByWilles,  J.,  1  T.  R.  301.  (6)  R.  v.  Teal,    11    East,   309,  su- 

(5)  Tillo  V.  Grevet,    2  Lord  Raym.     pro,  p. 

1008.     7  T.  R.  609.  (1)  Evid,  (3  edit.)  122. 

(a)  The  vendor  is  not  a  competent  witness  to  prove  title  to  goods  against  a  party 
claiming  adversely  to  his  title.     Per  Nott,  J.  I  Bail,  R.  49. 

Though  a  vendor  who  sells  goods  as  his  own,  is  inadmissible  as  a  witness  for  llie 
vendor,  being  bound  to  warrant  the  title  ;  Hale  v.  Smith,  6  Greenl,  416  ;  yet,  if 
the  vendor  sell  the  same  goods  a  second  time,  in  a  conflict  between  the  two  ven- 
dees, both  claiming  under  him,  he  may  be  a  witness  for  either,  his  interest  being 
exactly  balanced.     Butler  v.  Tults,  13  Maine,  R.  30.3. 

In  Wise  V.  Tripp,  13  Maine,  9,  where  the  witness  had  given  two  deeds — the  first 
a  warranty  deed  and  the  second  a  quit-claim  ;  Held,  that  he  was  a  competent  wit- 
ness for  the  latter  ;  his  interest  being  rather  to  sustain  the  deed  he  gave  with  war- 
ranty. 

A  vendor  is  competent  to  prove  a  sale  to  the  vendee,  although  the  property  has 
been  sold  and  the  proceeds  applied  to  a  judgment  against  him.  4  Porter's  Alaba. 
R.  63. 

{b)  If  a  witness  is  contradicted  as  to  any  fact  of  his  testimony,  either  by  his 
own  declarations,  at  other  times,  or  by  other  witnesses,  evidence  cannot  be  admit- 
ted of  liis  general  good  character.  Thus,  where  the  tenant  introduced  the  witness, 
who  was  cross-examined  by  the  demandants,  who  afterwards  read  the  witness' 
own  deposition,  to  contradict  his  testimony  upon  the  stand  :  Held,  that  this  gave  no 
right  to  go  into  evidence  of  general  character.  But  if  a  witness  be  introduced  by 
the  defendant,  to  show  that  the  plaintiff's  witness  has  given  a  different  account  of 
the  transaction  about  which  he  has  been  testif)'ing,  another  witness  may  be  intro- 
duced, to  show  that  the  first  witness  has  on  previous  occasions,  given  the  same  rela- 
tion to  which  he  has  testified.  It  is  not  proper  to  do  so  in  the  first  instance,  12 
Wend  78.  An  impeached  or  contradicted  witness  cannot  be  supported  by  the  party 
calling  him,  by  proof  of  his  declarations  made  at  other  times  and  to  other  persons, 
coinciding  with  hi^  testimony.     8  Greenl.  .55. 

A  witiiCHs  may  always  be  asked  any  question  relative  to  the  issue,  for  the  purpose 
of  contradicting  him,  if  his  answer  be  one  way,  by  other  witnesses,  in  order  to  dis- 
credit his  whole  testimony.  Thus,  a  witness  tnay  be  asked  whether  the  defendant 
had  a  controversy  with  the  witness,  and  whether  the  latter  has  not  threatened  to  be 
revenged  oti  him  ;  for  it  tends  to  prove  such  a  state  of  mind  towards  the  defendant, 
as  might  well  be  submitted  to  the  jury  to  discredit  his  testimony  as  to  material  facts. 
Per  Daggett,  J.,  7  Conn.  66.    ' 

(c)   I'lumb  D.  Whiting,  4  Mass.  518;    Moore   v.  Hitchcock,   4  Wend.   292; 


38  Incompetency  of  Witnesses  from  Interest.     [Ch.  5. 


/• 


is  interested  in  the  matter  in  question,  comes  to  prove  it,  it  is 
rather  a  ground  for  distrust,  than  any  just  cause  of  belief;  for 
men  are  generally  to  short-sighted  as  to  look  at  their  own  pri- 
vate benefit  which  is  near  to  them,  rather  than  to  tlie~good 
of  the  world,  which  is  more  remote  ;  therefore,  from  the  na- 
ture of  human  passions  and  actions,  there  is  more  reason  to 
distrust  such  biassed  testimony,  than  to  believe  it." 

Poiicv  of  The  exclusion  of  witnesses  from  interest  is  much  more  fre- 

quent than  from  any  of  the  grounds  of  incompetency,  which 
have  been  already  considered,  and  the  policy  of  the    law  on 

obieoiioiis    this  subject  is  by  no  means  free  from  doubt.     Against  the  rule 

agaiiibt,  jj.  j^g^y  j^g  objected,  that  there  is  no  just  ground  for  inferring, 
that,  in  the  generality  of  instances,  persons  interested  in  the 
subject  in  controversy  will  be  induced,  from  a  regard  to  their 
interest,  to  violate  the  duties  of  morality  and  religion,  or  to 
incur  the  penalties  of  the  law  by  committing  perjury  ;  nor,  if 
they  should  yield  to  such  an  inducement,  is  it  to  be  inferred, 
that  they  would  be  successful  in  imposing  upon  the  judge  and 
jury,  after  being  subjected  to  the  test  of  cross-examination, 
before  the  public,  in  open  Court.  It  may  be  observed  also, 
that  it  is  not  reasonable,  and  scarcely  consistent,  to  exclude 
witnesses  on  account  of  some  trifling  pecuniary  interest,  so 
small  perhaps  as  not  to  be  supposed  capable  of  producing  a  bi- 

[  *44  ]  as  on  their  minds, — when  yet  others  are  freely  admitted  though 
subject  to  the  powerful  influence  of  relationship,  friendship, 
passion,  or  feeling  :  and  that  at  all  events,  the  possibility  of 
occasional  hazards  in  the  administration  of  justice,  from  the 
admission  of  the  evidence  of  interested  witnesses,  is  a  much 
less  evil  than  that  of  counteracting  and  frustrating,  in  many 
instances,  the  great  object  to  which  all  rules  of  evidence 
ought  to  be  directed,  namely  the  discovery  of  truth.  In  pro- 
portion as  the  means  of  inquiry  and  information  are  shut  out, 
the  discovery  and  enforcement  of  truth  must  become  more 
difiicult.  The  inconveniences,  also,  necessarily  arising  out  of 
the  application  of  such  a  rule,  are  not  to  be  overlooked.  Of 
this  nature  are  the  difficulties  and  uncertainty  occasioned  by 
frequent  reference  to  a  great  variety  of  decisions,  which  re- 
quire considerable  research,  abound  with  many  subtle  distinc- 

Skillinger  v.  Bolt,  1  Conn.  147  ;  Richardson  v.  Hunt,  2  Mumf.  148  ;  Long  v. 
Bailie,  4  S.  &  R.  222  ;  Smith  v.  Downs,  6  Conn.  365  ;  Stimmel  v.  Underwood, 
3  Gill  &  J.  282.  But  the  interest  must  be  direct  and  certain.  Ten  Eyck  v.  Bill, 
5  Wend.  55.  In  Payton  v.  Hallet,  1  Caines,  364,  the  witness  objected  to,  had  an 
order  from  the  plaintiff  or  his  agent  to  be  paid  out  of  the  particular  fund  in  contro- 
versy, and  declared,  that  he  expected  to  be  paid  out  of  that  fund.  The  Court  con- 
sidered that  such  an  order  amounted  to  an  assignment  of  the  fund  protanto,  to  the 
witness.  But  a  factor,  which  has  a  general  lien  on  the  proceeds  of  the  sale  of  the 
goods  of  his  principal,  has  not  such  an  interest  in  the  event  of  the  suit,  as  ought  to 
disqualify  him.  Baldwin  v.  Mildeberger,  2  Hall,  176.  But  any  direct  interest, 
however  small,  renders  the  witness  incompetent.  Gage  v.  Stuart,  4  J.  R.  293  ;  2 
Green).  R.  199.     An  interest  in  any  part  of  the  demand  will  exclude,     id. 


V47 


/C-L-i-^x-O      ''^'^\J 


^^^ 


Cli.  5.  J     Incompetency  of  Witnesses  from  Interest.  39 

tions,  and  occasiflim[l:^  by  their  contrariety  create  much  legal  •^  "^^ 

doubt.     It  may  also  be   remarked,  that   the  numerous  ^xcep-  ^ 

tions  to  the  general  rule,  which  have  been  introduced,  (which 

are  so  many  arguments  against  the  policy  of  such  restrictions.) 

are  scarcely  reconcileable  with  the  principle  of  the  rule  itself. 

For  these  reasons,  it  should  seem  the   better  course  would  be 

to  admit  the  evidence  in  all  cases,  and  to  allow  the  objection       >»-^^  /"j*-*-- 

of  interest  to  be  urged  against  the  credit  of  the  witness,  not 

against  his  competency. 

The  reasons  in    support  of  the  principle   of  the  existing  •  ■^■^t-o^JO-t 

rule,  may  be  supposed  to  be  to  the  following  effect.     It  may 
be  said,  common  experience  shews,  that  the  strict  rule  of  law        "'     /' 
is   seldom  relaxed  by  allowing  persons  adversely  interested,  * 

especially  parties  to  a  suit,  to  be  examined  as  witnesses,  with-  5«^»v~  yx/r^c 

out  manifest  .danger  of  perjury  on  one  side  or  the  other  : — that  4^       •} 

the  inconvenience  of  excluding  witnesses,  whose  interest  is 
of  a  trifling  nature,  is  a  necessary  consequence  of  allowing 
the  objection  to  prevail  in  any  case  ;  and  that  there  is  no  in- 
consistency in  rejecting  such  witnesses,  while  others  are  ad- 
mitted under  the  influence  of  relationship  and  other  similar 
causes,  the  reasons  for  exclusion  in  the  former  case,  being  in-  K 

applicable  to  ihe  latter  ;  the  influence  of  relationship  is  va- 
rious, uncertain  and  capricious,  while  that  which  arises  from 
interest  is  palpable  and  universal ;  no  satisfactory  line,  there- 
fore, could  *be  drawn  in  the  former  case,  (1)  while  the  lat-  [  *45  ] 
ter  admits  of  a  precise  and  definite  rule  ;  it  may  be  remarked 
also,  that  the  objection  arising  from  relationship  would  be  ir-  r*  1  I 

removable,  while  that  from  interest  may,  in  ordinary  cases,  ^  m  Q  v^ 

be  removed  by  release  or  payment  ;  and,  further,  that  a  wit- 
ness biassed  only  by  feeling,  gives  evidence  for  another,  but 
one  under  the  bias  of  his  own  interest  may  be  considered  in 
some  degree  as  speaking  for  himself     With  regard  to  the  ar-  y 

gument,  that  the  objection  should  be  left  in  every  case  to  the 
consideration  of  the  jury,  who  will  decide  upon  the  credibili- 
ty due  to  a  witness,  it  must  be  remembered,  that  a  jury  is 
frequently  composed  of  persons  unskilled  in  discriminating 
between  truth  and  falsehood,  ignorant  of  the  real  characters  Out^*tiA*^ 
of  the    witnesses,   unable  therefore,   to  judge  how  far  they  ■'   ^ 

might  be  influenced  by  interested  motives,  and  who  have  on-  ^ ^•'^'^^ 

ly  a  very  short   space  of  time  allowed  for  deciding  upon  the         (j 
evidence.     The  practical  inconvenience,  it  may  be  said,  is  by 
no  means  so  extensive,  as  might  at  first  be  be  supposed ;  the 
strictness  of  the  old  law  having  been  much  relaxed  in  modern 

(1)   By  the  civil  law    relationship,  in  terest    is  aholished  ;    see    IVfr.    Livings- 

the  ascending    or   descending   line,  and  ton's  Preface,   p.  2.55,    and    Bentham's 

connection  in  marriage,  are   grounds    of  Rationale  of  .Judicial  Evidence,   vol.    1, 

exclusion.     By  the  recent  code  of  Louis-  139,  vol.  5,  34. 
iana,  the  exclusion  on  the  ground  of  in- 


J 


v^ 


40 


Incompetency  of  Witnesses  from  Interest.     [Cli.  5. 


o 


Wa, 


»  Jo 

f  *46  J 


times  :  (2)  and  an  interested  witness  may  in  general  be  ren- 
dered competent  by  means  of  a  release.  Where  the  interest 
is  trifling,  no  great  hardship  can  arise  from  requiring  it  to  be 
removed,  and  in  proportion  as  it  increases  in  amount,  there  is 
the  more  reason  for  rejecting  the  witness,  if  his  interest  be 
not  removed.  It  will  generally  happen,  that  the  direct  testi- 
mony of  persons  excluded  for  interest,  may  be  supplied  by  in- 
ferences from  the  circumstances  of  a  case  :  and  the  practi- 
cal consequence  of  the  rule  often  is,  that  parties  come  to  the 
trial  prepared  with  unimpeachable  evidence  of  a  transaction, 
when  otherwise  they  would  produce  witnesses,  whose  testi- 
mony might  perplex  or  mislead  a  jury :  so  that,  upon  the 
whole,  evidence  is  not  lost,  and  its  character  is  improved. 

*\\\  treating  of  the  incompetency  of  witnesses  from  interest, 
it  is  proposed  to  consider  the  subject  in  the  following  order  : 

1st.  Of  the  rule  of  incompetency  from  interest  considered 
with  reference  to  the  parties  to  the  suit. 

2dly.  Of  the  same  rule  considered  with  reference  to  per- 
sons, not  parties  to  the  suit. 

odly.  Of  certain  exceptions  to  the  general  rule  of  incompe- 
tency from  interest, — and. 

Lastly.  Of  the  means  by  which  the  competency  of  an  in- 
terested witness  may  be  restored. 


CHAPTER  VI. 

OF  THE   INCOMPETENCY    OF  THE    PARTIES  TO  THE   SUIT. 

Section  I. 

Of  the  Rule  of  Incompetency  from  Interest  considered  with 
Reference  to  the  Parties  to  the  Suit  in  Civil  Proceedings. 


Principle 
incom|)o- 
lency  of 
p^arties. 


of  It  has  been  stated  to  be  the  general  rule,  that  all  persons, 
interested  in  the  event  of  a  cause,  are  to  be  excluded  from 
giving  evidence  in  favour  of  that  side,  to  which  their  interest 
inclines  them.  The  persons  who  have  the  most  immediate 
and  obvious  interest  in  the  event  of  a  cause,  are  the  parties  to 
that  particular  cause,  and  they  are  therefore  in  general  incom- 
petent witnesses.  In  considering  this  branch  of  the  subject, 
it  will  be  convenient  to  treat  ;  1st,  Of  the  incompetency  of 
the  parties  in  civil  proceedings  ;  and  2ndly,  In  criminal  pros- 
ecutions. As  we  shall  presently  see,  their  exclusion  in  both 
cases  depends  on  the  same  general  principle.  In  prosecutions, 
as  well  as  in  actions,  the  general  rule  is,  that  a  person  inter- 


(2)   A  material    improvement  in    llii^     stnlote.     See  1>  S:  4  W .  4,  c.  42,  a.  26, 
respect   has   been  eflected    by  a  recent     21 ,  post. 


Sect.  1.]  .  Rule  of  IncompeLency  from  Interest,  ^c.  41 

ested  in  the  event  is  not  competent.  (1)     In  each  case  the 
competency  or  incompetency  of  the  parties  to  give  evidence 
depends  upon  *the  question,  whether  they  are,  or  are  not  in-   [  *47  ] 
terested  in  the  event.  (1) 

In  general ,  a  party  to  the  record,  in  a  civil  suit,  cannot  be  a  ^*"'^^  '" 

.  .  .  .  Civil  suits 

witness  at  the  trial,  for  himself  or  for  a  joint  suiter,  against  incompe-' 
the  adverse  party.  (2)  (a)  '^"'• 

The  incompetency  of  the  parties  to  the  record,  to  give  evi-  pf°"n<^  «•* 
dence  in  their  own  behalf,   appears  to  be  founded  upon  the  tency. 
sole  ground  of  their  being  interested  in  the  event.      In  deliv-  ^"'^^*'*'- 
ering  the  judgment  of  the  Court  of  Common  Pleas  in  a  recent 
case,  (3)  LordC.  J.  Tindal  says,  "No  case  has  been  cited,  nor 
can  any  be  found,  in  which  a  witness  has  been  refused  upon 
the  objection,  in  the  abstract,  that  he  was  a  party  to  the 
suit.     On  the  contrary,  many  have  been  brought  forward,  in 
which  parties  to  the  suit,  who  suffered  judgment  by  default, 
have  been    admitted  as   witnesses  against    their  own  inter- 
est :     and  the  only  inquiry  seems  to   have  been  in  a   ma- 
jority of  cases,  whether  the  party  called  was  interested  in         •  .^ 
the   event,  or  not  :  the  admission  or  rejection  of  the  witness          ^^  t^iJl  ' 
has  depended  upon  this  inquiry."     So  Lord  C.  B.  Gilbert,  af- 
ter stating  the  general  rule,  that  no  man  interested  in  the  mat- 
ter in  question  can  be  a  witness  for  himself,  observes,  that  it 
is  a  corrollary  to  be   deduced  from  this  rule,   "  that  the  plain- 
tiff or  defendant  cannot  be  a  witness  in  his  own  cause,    for 
these  are  the  persons  who  have  a  most  immediate  interest : 
and  it  is  not  to  be  expected  that  a  man  who  complains  with- 
out cause,  or  defends  without  justice,  should  have  honesty         ^  ^  •—  -.  . 
enough  to  confess  it."  (4) 

The  parties  to  the  record  in  civil  suits  are  in  general  inter-  Nature  of 
ested,  both  in  the  question  at   issue  in  the  cause,  and  in  the  ^^^  imerest. 

•     (1)   J^ee  per  Cur.  9  B.  &  C.  5G0.  and  tlieir  incapncity  in  common  with  oth- 

(1)  The  privilege  of  pnrties  to  a  suit  er  interested  witnesses, 
in  not   being   coiupeliable  to  appear  as         (2)   1  Vernon,  230.     1  P.  Wms.  596. 

witnesses,    is  a  subject  distinct  I'rom  the  Gilb.  Evid.  116. 

present  inquiry,  and  will  be  considered  (3)  VVorrali  v.  Jones,   7   Bing.  398, 

liereafter.     Much   confusion    lias   arisen  399. 

from    inattention   to  the   distinction   be-         (4)  Gilb.  Evid.  132,  (3d  edit.)     See 

iween  the  privilege  of  parties  to  a  suit,  also  per  Lord  Hardvvicke,  3  Alk.  401. 


(a)  Vinyard  v.  Brown,  4  M'Cord,  24  ;  Commonwealth  v.  Barton,  10  Pick.  57. 
And  is  founded  on  public  policy  as  well  as  on  the  ground  of  interest.  4  Wend. 
457. 

i^ome  exceptions  have  been  admitted  ;  such  as  the  admission  of  the  party  to  lay 
the  foundation  for  the  admisision  of  secondary  evidence  ; — for  example,  to  prove 
the  death  of  a  subscribing  witness  to  a  written  instrument.  Jackson  v.  Davis,  5 
Cowen,  123  ;  16  J.  R.  193  ;  20  id.  144.  The  affidavit  wms  admitted  to  prove 
the  loss  of  a  written  instrument.  Donelson  v.  Taylor,  8  Pick.  390  ;  5  id.  26. 
But  the  contents  of  a  deed  or  record  cannot  be  proved  by  the  testimony  of  a  party. 
Per  Wilde,  J.  7  Pick.  62.     See  1  Aik.  301  and  2  Bail.  R.  427,  contra. 

The  affidavit  of  the  party  is  also  admissible  on  a  motion  for  a  continuance,  even 
in  a  capital  case.     9  Pick.  497. 

6 


42  Rule  of  Inconipcicncij  from  Interest^  6fc.      [Ch.  (s. 

qucslioii  of  costs,  whicli  commonly  depends  upon  the  event 
of  the  cause.       It  is  not  necessary  that  they  should  be  intei- 
[  *48  ]   estcd  *in  both  these  ({uestions  :  if  they  are  interested  in  either 
})oint  of  view,  they  will  be  incompetent  witnesses;  it  seldom, 
therefore,  happens,  that  they  are  competent  to  give   evidence. 
Members  of      Thc  sauic  principles,  which  render  parties  to  the  record  in- 
tiou's!'^*       competent,  when  suing  in  their  individual  capacities,  apply  to 
members  of  a  corporation  suing  in  its  corporate  name.     Thus, 
in  ejectment  for  lands  of  a  corporation,  a  member  of   the  cor- 
poration is  an  incompetent  witness,  if  he  be  interested  either 
in  the  lands  sought  to  be   recovered,  or  in  the  general  funds 
of  the  corporation  which  are  liable  to  the  costs  of  the  action.  (1) 
It  appears  to  have  been  at  one  time  considered,  that  in  cases 
of  this  nature,    an  individual  corporator  might  be  admitted,  if 
the  interest  were  of  a  very  trifling  nature  :    thus  in  the  case 
of  the  King  v.  The  Mayor  and  Commonalty  of  London,  (2) 
and  in  that  of   the   City  of  London,   concerning  water  bail- 
age,  (3)  it  was  held,  that  in  a  question,  concerning  the  right 
,        of  the  corporation  to  tolls,  an  individual  corporator  might  be 
^*  II  i  ^  »'  received  as  a  Avitness  for  the  corporation,  because,  it  was  said, 

the  tolls  would  be  received  for  the  benefit  of  the  whole  cor- 
porate body,  and  the  interest  of  any  individual  must  therefore 
be  inconsiderable.  But  as  it  has  been  fully  settled  by  sub- 
sequent cases,  that  any  interest  in  the  event  of  the  suit,  how- 
ever minute,  will  render  a  witness  incompetent,  the  above  de- 
cisions may  be  considered  as  overruled.  (4)  (a) 

(1)  Doe  V.  Tooth,  3  Y.  &  J.  19.  (4)   See  Bui.  N.  P.  290.      Burton  v. 

(2)  2  Lev.  231.  Hinde,  5  T.  R.  174.     Doe  u.  Tooth,  3 

(3)  1  Ventr.  351.     And  see  Corpora-  Y.  &,  J.  19. 
lion    of  Sutton,  Coldfield  v.  Wilson,    1 

Vern.  254. 

(a)  "  We  constantly  find  the  sovereign  both  here  and  in  Great  Britain,  a  party 
in  suits  in  their  own  courts  ;  and  it  was  never  imagined  that  all  the  citizens  or  sub- 
jects of  the  government,  were  incompetent  witnesses  in  such  suits,  because  the 
government  might  be  enriched  by  them."  Per  .lackson,  J.  Connecticutt  v.  Bradisii, 
14  Mass.  296.  An  inhabitant  of  the  State  was  there  admitted  in  the  action  in 
which  the  State  was  a  party,  id.  The  remote  and  contingent  interest  of  a  corpo- 
rator of  a  mere  municipal  corporation,  is  not  sutScient  to  exclude  him  as  a  witness 
in  behalf  ol  the  corporation  And  a  trustee  of  such  corporation,  although  an  agent  of 
the  corporation  is  admissible.  Trustees  of  the  Village  of  Watertown  v.  Cowen,  4 
Paige's  Ch.  R.  510. 

"  The  rule  appears  to  be,  that  in  questions  respecting  the  rights  and  immunities 
of  a  corporation,  the  evidence  of  individuals,  who  are  not  individually  interested, 
though  members  of  the  corporation,  may  be  received.  But  where  corporators  as 
Buch,  have  a  private  interest,  they  are  then  incompetent,  (Peake's  ev.  155.)  In 
the  courts  of  some  of  the  States,  it  has  been  adjudged,  that  the  members  of  an  in- 
corporated society,  to  whom  property  was  devised  for  the  support  of  a  school,  are 
incompetent  to  attest  the  will.  Also,  where  a  suit  was  carried  on  by  a  board  of 
cho.sen  freeholders,  who  in  their  private  capacity  had  advanced  money  to  carry  it 
on,  a  member  of  the  board  was  held  a  competent  witness,  being  interested  in  his 
corporate,  and  not  in  his  private  or  individual  capacity.  (Peake's  ev.  155,  t/i 
in/tes.'"     Per  Williams,  J.  2  Yerg.  R.  167. 

An  inhabitant  of  a  particular  place  is  not  admissible  to  prove  a  prescriptive  right 


Sect.  1.]        I ncompctencij  of  Parties  to  the  Suit.  43 

Where  the  party  to  an  action  lias  no  interest  in  the  question  ^°^"-  . 
in  dispute,  but  is  suing  as  a  mere  trustee  for  another  person,  c"s""  '" 
he  Mill  nevertheless,  in  general,  be  incompetent,  on  the  ground 
of  liability  to  costs.  (5)  (a)  A  procheinami,  or  guardian,  suing 
for  an  infant,  is  incompetent  upon  this  ground.  (6)  Persons 
appointed  governors  and  directors  of  the  poor  of  a  parish,  un- 
der *an  act  of  parliament,  which  authorizes  them  to  assess  [  *49  ] 
rates  on  the  inhabitants,  but,  in  case  of  appeal,  makes  them 
liable  for  costs,  to  be  indemnified  out  of  the  parochial  funds, 
are  not  competent  witnesses  on  the  trial  of  such  appeal,  being 
individually  liable  to  costs,  in  the  first  instance.  (1)  In  a  late 
case,  where  parochial  trustees  were  empowered  by  statute  to 
sue  in  the  name  of  their  treasurer,  or  clerk,  and  the  act  con- 
tained a  provision  for  re-imbursiug  such  treasurer,  or  clerk, 
his  costs  out  of  the  rates,  Lord  Tenterden  appears  to  have  con- 
sidered, that,  in  an  action  brought  in  the  name  of  the  treasur- 
er, a  trustee  was  an  incompetent  witness  for  the  plaintiff,  al- 
though the  trustees  took  no  benefit  under  the  statute,  and  rat- 
ed parishioners  were  thereby  made  competent  witnesses.(2)  (6) 

(5)  Per  Cur.  Dowdesvvell  v.  Nott,  2  Tentenlen's  opinion  seema  to  have  been, 
Vern.  317.  Davis u.  Morgan,  1  Tyrvvh.  that  the  tiustses  v.'ere  llie  substantial 
457.  1  C.  &  J.  87.  Bauerman  tj.  Ra-  plaintills  ;  but  qu.  whelher  tiiey  had 
denius,  7  T.  R.  668.  Philhps  v.  Duke  any,  and  what  interest  in  the  event  :' 
«f  Buckingham,  I  Vern.  230,  and  see  The  witness  vv'as  admitted,  leave  being 
the  cases  cited  l.*?  Price,  512.  given  to  move,  and  a  rule  nisi  for  a  new 

(6)  Clutterbuck  v.  Lord  Huntingiow-  trial  appears  to  have  been  granted  on 
er,  1  Stra.  50.5.  James  jj.  Hattieid,  I  tliis,  and  another  point,  but  tlie  final  re- 
Stra.  5^8.  Hopkins  v.  Neal,  2  Stra.  suit  does  not  appear.  See  Fletcher  v. 
1025.     Giib.  Evid.  107.  Greenwell,   5  Tyw.  31G,  where   it   was 

(1)  R.  V.  St.  Mary  Magdalen,  Ber-  decided,  that  a  parochial  director  was 
inondsey,  3  East,  7.  competent,  under  circumstances  sinnibr 

(2)  Whitmore   v.  \Vilk<!,  Mo.  &  Ma.  to  those  of  the  preceding  case. 
N.  P.  C.   214.     The   ground  of   Lord 

in  all  the  inhabitants,  because  that  would  be  swearing  to  give  him  a  right  there. 
Per  Savage  Ch.  J.  6  Covven,  369  ;  2  .1.  R.  175. 

The  inhabitants  of  a  town  and  parish  are  admitted  witnesses.  6  N.  H.  R.  164. 
So,  in  City  Council  v.  King,  4  M'Cord,  487,  a  citizen,  though  one  of  the  corpora- 
tors, was  held  to  be  admissible  as  a  witness. 

In  Gould  V.  James,  6  Cowen,  369,  where  the  inhabitants  of  a  particular  place 
claimed  a  right  by  prescription  to  fish  ;  Held,  that  in  an  action  sued  by  one  of  the 
inhabitants  for  a  violation  of  this  claim,  another  was  admissible  who  was  interest- 
ed as  a  remainder  man  in  an  adjoining  tract  of  land. 

(a)  It  is  a  well  settled  rule,  that  an  interest  in  costs  will  exclude  a  witness  ; 
Bill  V.  Porter,  9  Conn.  29  ;  2  id.  269  ;  3  id.  101.  A  liability  for  costs  of  suit 
renders  a  witness  incompetent  ;  Owens  v.  Collinson,  3  G.  &  J.  34, 

In  Adarrii  v.  Leland,  7  Pick.  62,  several  plaintills  sued  as  trustees  of  a  charity, 
and  pending  the  suit  one  of  the  plaintiffs  resigned  his  trust.  Held,  that  he  was  still 
liable  for  the  co.its  and  therefore  inadmissible  as  a  witness. 

(b)  See  Supervisors  of  Chenango  v.  Birdsall,  4  VVcnd.  453.  Nominal  parties 
who  have  no  real  interest  in  the  question  to  be  tried,  and  who  are  not  indemnified 
as  to  costs,  are  nevertheless  excluded  from  testifying.  Commonwealth  v.  Marah, 
10  Pick,  57. 

It  is  said  by  Ld  Hardwicke  in  Fotherly  v.  Tate,  3  Atk.  604,  that  a  trustee, 
though  he  has  the  le^al  estate,  is  considered  as  having  no  interest,  and  is  examin- 
ed by  order  of  the  Court  of  Chancery  every  day.     The  courts  of  law  in  Pennsyl- 


44  Incompetency  of  Parties  to  the  Suit.         {Ch.  6. 

^.u"'''*/®°'       As  the  objection  to  the  competency  of  a  party  to  the  suit 
from  inter-    is  foundcd,    not  upon  the  abstract  ground  of  being  a  party, 
est.  (a)       |)ut    upon    the     ground    of    being    interested,    it     follows, 
that  if    a   person,   tendered  as  a   witness,    has    no  interest 
whatever  in  the    event  of  the    suit,  he    will  be    competent 
although  he  is  a  party  to  the  record.       Thus,   in  an  action 
against  parties  in  a  corporate  capacity,  who  had  no  individual 
interest  in  the  question  in  dispute,  and  were  not  personally  li- 
able to  costs,  Lord  Kenyon  admitted  several  of  the  defendants, 
as  witnesses  against  the  claim  of  the  plaintiff.  (3)     And  in- 
Corpora-      deed,  it  appears  to  have  been  always  considered,  that,   in  ac- 
tions  by  or  against  corporations,   individual  corporators  are 
competent,  where  they  have  no  interest  in  the  event  of  the 
suit :    for  in  all  these  cases  the   objection  to  the  witness  has 
been,  not  that  he  was  a  member  of  the  corporation,  and  con- 
r  #50  1   sequently  one  of  *the  parties  to  the  suit,  but  that  he  had  some 
personal  interest  which  disqualified  him  from  giving  evidence. 
Inhabitants  So  in  proceedings  against  the  inhabitants  of  parishes  and  oth- 
coum[es'^^'  er   districts  relative  to  settlements,   repairs  of  highwa,ys  and 
iic.      '     bridges,  and  other  questions  affecting  the   rates  of  particular 
districts,  rated  inhabitants  have  been  always  adjudged  to  be 
incompetent  (unless  rendered  competent  by  statute),  by  rea- 

(3)  Weller  r.  Governors  of  Foundling 
Hospital,  Pcake,  N.  P.  C.  153.  See  3 
Atk,  401. 


vania  have  uniformly  acted  upon  this  principle.  The  name  of  the  trustee  is  used 
by  the  cestui  que  trust,  who  is  liable  for  the  costs  of  suit,  and  is,  rn  (uct  the  only 
person  interested.  I'erTilghman,  6  Binn.  478.  See  Fox  r.  Whitney,  16  Mass. 
118. 

In  Field  v.  Field,  9  Wend.  394,  it  was  held,  that  although  the  witness 
was  a  member  of  a  society  w  hich  had  an  interest  in  a  fund,  he  was  competent  to 
testify  in  reference  to  a  payment  miide  to  him  as  agent.  See  also  Wells  v.  Lane, 
8  J.  R.  462,  where  a  member  of  a  society  of  quakers  was  admitted  in  a  penal  ac- 
tion. 

(a)  In  M'Donald  r.  Neilson,  2  Cowen,  139  ;  6  J.  Ch.  R.  212,  which  was  a 
proceeding  in  Chancery,  a  co-defendant  against  whom  no  particular  relief  was 
prayed,  but  who  was  charged  with  fraud,  was  admitted  to  be  examined  as  a  wit- 
ness for  his  co-defendants.  On  this  point,  the  decisions  in  the  English  Courts  are 
certainly  somewhat  contradictory  ;  but  it  seems  that  the  weight  of  the  later  author- 
ities is  in  favour  of  their  admissibility.  (1  Phil.  Ev.  2d  .Mm.  ed.  63.  Fenton  v. 
Hughes,!  Ves.  287.  Dunham  v.  Corporation  of  Chippenham,  14  Ves. 
251.  iVhitworthx.  Davis, I  Ves.  fy  £ea.  .'548,  551.)  The  inclination  in  our 
Courts,  has  been  "  to  confine  the  question  of  interest  within  strict  and  precise 
boundaries,  and  to  let  objections  go  more  to  the  credit  than  to  the  competency  of 
witnesses,"  (Btbee  et  al  v.  Bank  of  J\'ew  York,  I  John  Rep.  577,)  and 
to  admit  the  testimony  of  such  defendants,  permitting  all  objections  to  be  made  to 
their  credibility  rather  than  their  competency.  {Kirk  v.  Hodgson,  et  al,  I  John. 
Ch.Rep.  550.) 

In  Willing  v.  Consequa,  1  Wash.  C.  C.  R.  307,  judge  Washington  held,  that  a 
party  plaintiff  of  record,  not  having  an  interest  in  the  suit,  may  be  admitted  as  a 
competent  witness.  But  in  Levy  v.  Burley,  2  Sum.  R.  361,  judge  Story  observes 
that  '  that  decision  has  not  been  thought  entirely  satisfactory.' 

A  mere  nominal  plaintiff  may  be  admitted  to  prove  the  claim  without  a  release. 
Martin  v.  Stille.  3  Whart.  R.  337. 

Plaintiff  who  had  assigned  all  his  property  and  executed  a  release  was  admitted 
to  tcilify.     Per  Tilghman,  C.  J.  3  Binn.  306. 


Sect.  1.]        Incompetency  of  Parties  to  the  Suit.  45 

son  of  their  interest  in  the  event  of  the  suit :  but  inhabitants 
not  rated  had  no  such  interest,  and  were  always  considered 
competent,  although  the  particular  proceedings,  in  the  course 
of  which  their  evidence'  was  admitted,  were  nominally  by, 
or  against,  all  the  inhabitants  of  the  district.  And  even  ratea- 
ble inhabitants  are  not  incompetent  if  not  actually  rated.  (1)  (a) 

The  preceding   observations  relate  to  the  incompetency  of  Co-defend- 
parties,  who  retain  their  original   situation  assumed  at  the  orjudgmeni 
commencement  of  a  suit.       But  questions,  with  regard  to  the  by  default 
competency  of  the  parties  to  the  record  to  give  evidence,  have  proseque: 
most  frequently  arisen  in  actions  against  several  defendants, 
one  of  whom  has  been  placed  in  a  different   situation  on  the 
record,  from  that  of  his  co-defendants,   in  consequence  of  a 
judgment  by  default  or  nolle  prosequi.     In  some  of  these  ca- 
ses, the  question  of  the  witness's  competency  is  rather  com- 
plicated and  difficult,  and  it  is  perhaps  not  easy  to  reconcile 
all  the   decisions  on  the  subject ;    but  in  all  of  them,  the  in- 
quiry has  been,  whether  the  effect  of  the  particular  proceeding 
that  has  taken  place  with  regard  to  the  witness,  has  been  to 
remove  his  interest  at  the  trial ;  if  such  appears  to  be  the  case 
he  will  be  competent :  but,  if  he  still  appears  to  have  an  in- 
terest in  the  determination  of  the  cause,  in  favour  of  the  party 
on  whose  behalf  he  is  tendered  as  a  witness,  he  will  be  in- 
competent. (6) 

1.  Effect  of  a  judgment  by  default. 

In  an  action  against  two  defendants  on  a  ioint  contract,  it  Action  on 

con'rB.ct 

was  ruled  by  Lord  Kenyon,  that  one  of  the  defendants,  who 

(1)  See  Marsden  v.  Stanfield,  7  B.  &  C.  818, 


(a)  See  ante  p.  48.  note  ;  also  Falls  v.  Belknap,  1  J.  R.  386  ;  Blaodgood  v. 
Jamaica,  12  J.  R.  28-5  ;  Jackson  v.  Com.  of  Hillsborough,  1  Dev.  &  B.  177. 

In  Methodist  Epis.  Ch.  of  Cincinnati  v.  Wood,  5  Ohio,  234,  a  member  of  the 
corporation  was  admitted  as  a  witness. 

Inhabitants  of  Towns  are  made  competent  by  statute  in  cases  where  the  corpo- 
ration is  a  party  in  interest.  Luf  kin  v.  Haskell,  3  Pick.  356.  However,  where 
the  question  is  in  respect  to  the  right  of  the  inhabitants  to  dig  clams,  or  to  have  a 
way,  common,  or  other  easement,  it  is  different,     id  ;  8  id.   518. 

(6)  In  V"an  Norden  v.  Striker,  9  Wend.  286,  one  of  the  defendants  named  in  the 
capias  was  not  found.  Held,  that  such  nominal  party  was  not  admissible  as  a 
witness  on  the  trial  of  the  issue  between  the  plaintiff  and  his  co-defendant.  So,  in 
Shepard  ».  Ward,  8  Wend.  542,  where  a  co-defendant  died  pending  the  suit. 
Held,  that  the  son  of  the  latler  was  not  admissible  as  a  witness. 

The  plei  of  infancy  can  only  destroy  the  right  of  action  against  him  who  pleads 
it  : — Held  therefore,  that  where  two  defendants  sue  on  joint  contract,  and  one  of 
the  defendants  being  an  infant,  pleads  his  infancy,  the  Court  will  permit  the  plain- 
tiff to  enter  a  nolle  prosequi  against  the  infant,  and  proceed  against  the  other  de- 
fendants. Hartness  &  al  v.  Thompson  &.  al,  5  Joim.  R.  160  ;  Woodward  v. 
Newhall,  1  Pick.  500.  In  the  last  case,  the  Court  say,  "  upon  comparing  the  N. 
P.  cases  in  the  English  books  and  the  case  in  New  York,  it  was  thought  the  strong- 
er reason  was  with  the  latter." 


46 


Incompetency  of  Parties  to  the  Suit.         [Ch.  6. 


Defendant 
incompe- 
lent  for  co- 

defpndanl. 


Incompe- 
lent  for 
plaiiiiitr. 


had  suffered  judgment  by  default,  was  incompetent  as  a  wit- 
ness, in  behalf  of  tlie  other  defendant,  to  negative  the  con- 
tract ;  for  if  *negatived  as  to  one,  the  contract  failed  as  to 
the  other,  and  the  plaintiff  could  make  no  use  of  his  judgment 
by  default  against  the  witness,  who  was  consequently  interest- 
ed in  obtaining  a  verdict  for  the  defendant.  (1) 

It  has  also  been  decided,  that  a  defendant  so  situated  is  not 
competent  for  the  plaintiff;  upon  the  ground,  that,  if  the 
plaintiff  succeed  in  the  action,  the  witness  will  be  entitled  to 
contribution  from  his  co-defendant,  but  that  if  the  plaintiff 
fail,  the  witness  will  himself  be  liable  for  the  whole  demand  ; 
for  although,  as  stated  in  the  previous  case,  the  judgment  by 
default  in  that  particular  action  would  become  inoperative,  by 
the  failure  of  the  plaintiff  on  the  trial  ;  yet  it  was  said  by  the 
Court,  the  plaintiff  might  proceed  against  the  witness  for  the 
recovery  of  the  whole  demand  in  another  action,  and  the  wit- 
ness would  relieve  himself  from  this  liability  to  anew  action, 
by  establishing  the  joint  liability  of  his  co-clefendant.  (2)  In 
a  subsequent  case,  a  witness,  similarly  situated  with  the  wit- 
nesses in  the  two  preceding  cases,  was  considered  incompetent 
for  the  plaintiff,  although  he  had  been  released  by  the  plaintiff 
as  to  all  actions  except  the  action  on  trial.  It  was  argued  in 
this  case,  that  the  witness  was,  at  all  events,  rendered  compe- 
tent by  the  release,  for  if  the  plaintiff  failed,  the  witness  would 
be  freed  from  all  liability  whatsoever  ;  but  if  the  plaintiff  suc- 
ceeded, the  judgment  by  default  would  become  available 
against  the  witness,  and  he  would  be  liable  jointly  with  the 
other  defendant,  and  that  consequently  his  giving  evidence 
for  the  plaintiff'  must  be  against  his  own  interest ;  but  the  Court 
of  Common  Pleas  decided,  that  he  was  incompetent.  (3)  (a) 


(1)  Brown  v.  Fox,  Ex.  Sum.  Ass. 
1789.     8  Taunt.  141. 

(2)  Brown  v.  Brown,  4  Taunt.  752. 
The  distinction  between  this  and  the 
preceding  case  is  very  refined  ;  for,  in 
the  preceding  case,  the  witness  was  re- 
jected, because  he  was  interested  in  pro- 
curing the  failure  of  the  plaintiff,  and 
here  he  was  also  rejected,  because  he 
was  interested  in  procuring  his  success. 

(3)  Mant  v.  Manwaring,  8  Taunt. 
139.     2  Moore,  9,   S.  C.     The  Court 


appear  to  have  considered  in  this  case 
that  a  party  to  the  record  was  incompe- 
tent without  reference  to  the  question  of 
interest  ;  and  from  the  judgment  of  Dal- 
las, J.  and  Burrough,  J.,  it  also  appears 
to  have  been  considered,  that  one  of  sev- 
eral defendants  could  in  no  case,  even 
against  his  own  interest,  give  evidence 
against  his  co-defendants  without  their 
consent.  But  see  Norden  v.  Williamson, 
1  Taunt.  378.  Worrall  v.  Jones,  7 
Bing.  395,  infra  52. 


(a)  In  Columbian  Manuf.  Co.  v.  Dutch  et  al.  13  Pick.  125,  which  was  an  ac- 
tion sued  to  recover  for  goods  consigned  to  defendants  who  were  sued  as  partners 
and  joint  merchants,  one  of  the  defendants  was  defaulted  and  upon  the  trial  of  the 
issue  joined  in  regard  to  the  joint  promise  of  the  other  defendant,  the  plaintiffs  pro- 
duced the  co-defendant  who  had  been  defaulted  ;  Held,  that  he  was  not  a  compe- 
tent witness.  Shaw,  C.  J.  observed  : — "  LooUing  merely  to  the  present  action, 
perhaps  his  apparent  interest  is  the  other  way,  because  if  he  testifies  that  3Iatchett, 
(co-defendant)  is  liable  with  himself,  having  admitted  his  own  liability  by  his  de- 
au1t,  he  would  enable  the  plaintiffs  to  have  a  joint  judgment  against  two  ;    where- 


Sect,  l.j        Incompetency  of  Parties  to  the  Suit.  AT 

*If,  however,  a  defendant,  who  has  suffered  judgment  by  Sometimes 
default  be  so  situated,  that  he  cannot  claim  contribution  from  fo^fliainUfr. 
his  co-defendants,  he  will  be  a  competent  witness  against  [  *52  ] 
them.  Thus  in  an  action  on  a  bond  against  a  principal  and 
two  sureties,  where  the  principal  had  suffered  judgment  by 
default,  and  was  tendered  at  the  trial  as  a  witness  on  behalf 
of  the  plaintiff,  the  Court  of  Common  Pleas,  after  a  review  of 
all  the  authorities,  and  time  taken  to  consider,  held,  that  he 
was  competent.  (1)  In  giving  judgment  in  this  case  the  court 
said,  that  no  objection  could  arise  on  the  ground  that  the  wit- 
ness was  intetested  to  procure  a  A^erdict  for  the  plaintiff,  inas- 
much as,  being  the  principal  debtor,  he  could  not  call  for  con- 
tribution from  the  other  defendants,  but  Avas  himself  ultimate- 
ly liable  to  all  the  damages  and  costs  recovered  in  the  action  : 
and  that  there  was  no  case  to  shew  that  a  witness  was  dis- 
qualified, merely  because  he  Avas  a  party  to  the  suit,  Avhere  he 
Avas  not  interested  in  giving  his  testimony. 

In  actions  upon  torts  against   scA'eral  defendants,  the  situa-  Action  on 
tion  of  a  defendant,  Avho  has  suffered  judgment   by  default,   °'^, 
varies  from  that  of  a  defendant  Avho  has  suffered   judgment  ant  suffer- 
by  default   in  an  action  against  several  parties  upon  a  joint  J|Jf„|"tf/jg. 
contract.     In  the  latter  case,  as  Ave  have  already  observed,  if  fault, 
the  plaintiff  fails  upon  the  trial  against  the  other  defendant, 
his  judgment  Avill,  in  general,  be  rendered  Avholly  unavailing  ; 
but  in  the  former  case,  he  Avill,  in  general,  be   entitled   to  en- 
force his  judgment  against  the  party  Avho  has  suffered  it  to 
pass  against  him,  although  the   other  defendants  Avho    have 
pleaded  may  obtain  a  verdict.     In  the  case  of  Ward  v.  Hay-  Heidcom- 
don,  (2)  it  Avas  ruled  by  Lord  Kenyon  at  nisi  pritis,  that  the  peient  for 

aut. 
(1)  Worrall  v.  Jones,   7   Bing.   395.     ble  to  give  evidence  against  his  own  in- 
See  the  judgment  of  Tindal,  C.  J.  in  this     terest. 

ca*e,  quoted  a«<e.     And  see  ^osf,  as  to  (2)   2    Esp.  N.   P.  C.  553.     Peake's 

a  party  to  a  cause  not  being  compella-     Add.  Ca.  126,  S.  C. 

as,  if  he  testifies  that  Matchett  is  not  liaijle,  then  this  action  must  fail,  even  against 
himself,  and  he  would  recover  costs  ;  it  being  a  rule  that  if  two  are  sued,  and  not 
proved  to  be  jointly  liable,  the  plaintiff"  can  have  no  judgment  against  the  one  de- 
faulter, or  against  whom  a  verdict  is  returned  ;  Tuttle  v.  Cooper,  10  I'ick.  281. 
Therefore  by  testifying  against  the  plaintitTs  in  (avor  ol  the  defendant,  he  would  de- 
feat the  action  against  himself,  and  so  would  seem  to  liave  an  interest  against  the 
plaintiifs.  Hut  it  must  be  considered,  that  by  defeating  the  action  lie  lays  the 
foundation  for  another  action  against  himself,  in  which  he  must  be  solely  charged 
with  the  whole  debt;  whereas,  if  he  testifies  against  the  defendant,  and  in  favor 
of  the  piainlills,  he  fixes  the  other  defendant  as  equally  liable  with  himself  for  the 
debt;  equally  liable  for  the  whole  in  the  first  instance,  and  ultimately  liable  pri- 
ma facie,  to  contribution.  This  principle  was  recognized  and  formed  the  point  of 
decision  in  lirown  v.  Drown,  4  Taunt,  762,  which  was  recognized  and  confirmed 
by  Mant  v.  Mainwaring,  8  Taunt.  139  ;  S.  C  2  J.  B.  Moore,  9.  Tliere  appear- 
ing to  be  a  plain  interest  in  the  witness  to  charge  the  other  defendant  with  a  pro- 
portion of  the  debt,  and  no  apparent  interest  to  counterbalance  it,  it  appears  to  us 
that  he  liad  a  jirepondcrance  of  interest  to  testify  in  favor  of  tlie  party  calling  him, 
and  was  of  course  mcompelenl." 


Damages 
assessed. 


48  Incompetency  of  Parties  to  the  Suit.  [Ch,  6. 

defendant  in  an  action  of  trover,  who  had  suffered  judgment 
by  default,  was  a  competent  witness  for  his  co-defendant, 
wlio  had  pleaded  not  guilty.  His  Lordship  observed,  that 
by  reason  of  the  judgment  by  default,  the  cause  was  at  an 
end,  with  regard  to  the  witness  :  that  he  was  not  liable  to 
r  *53  1  the  costs  of  the  issue  tried  against  the  *other  defendant,  and 
was  not  himself  released,  whatever  might  be  the  event  of  that 
issue.  The  same  point  appears  to  have  been  also  ruled  at 
nisi  prius  by  another  learned  judge,  in  an  action  of  tres- 
pass. (1) 

But  there  may,  perhaps,  be  some  doubt,  whether  the  deci- 
sions, just  adverted  to,  are  to  be  considered  as  furnishing  a 
general  rule,  applicable  to  all  cases,  in  which  one  of  several 
defendants  in  an  action  of  tort,  has  suffered  judgment  by  de- 
fault. According  to  the  ordinary  practice,  there  is  but  one 
assessment  of  damages  in  cases  of  this  nature,  and  the  same 
jury,  that  try  the  issue  between  the  plaintiff  and  the  defend- 
ants who  have  pleaded,  also  assess  the  damages  against  the 
defendant,  who  has  suffered  judgment  by  default,  and  the 
other  defendants,  if  they  are  found  guilty.  It  is  obvious,  that 
a  defendant,  who  has  suffered  judgment  by  default,  has  an 
immediate  interest  in  reducing  the  amount  of  damages,  and 
therefore,  as  it  should  seem,  could  not  be  called  for  this  pur- 
pose. And  in  a  late  case,  (2)  in  which  a  defendant,  who  had 
suffered  judgment  by  default  in  an  action  of  trespass,  was  call- 
ed as  a  witness  for  two  co-defendants,  who  had  pleaded,  Best, 
C.  J.,  was  of  opinion,  that  the  witness  was  incompetent  ;  for  if 
his  evidence  were  admitted  on  behalf  of  the  other  defendants, 
it  might  give  such  a  complexion  to  the  case  as  to  operate  in 
reduction  of  the  damages  against  himself.  (3)  (a) 

(1)  Anon.  2  Campb.  334,  n.  Wood,  was  not  in  fact  interested  in  regard  to  the 
B.  See  also  by  Le  Blanc,  J.,  2  Campb.  costs.  In  addition  to  the  ditticulty  ad- 
383,  n.  verted  to  in   Mash   v.  Smith,   tiiere  ap- 

(2)  ftfash  V.  Smith,  1  Car.  &  P.  577.  pears  to  be  another,  which  may  perhaps, 

(3)  The  Lord  Chief  Justice  however,  in  some  cases,  prevent  a  defendant,  who 
admitted  the  witness,  with  leave  to  move  has  suffered  judgment  by  default,  from 
if  the  result  of  the  cause  should  render  it  giving  evidence  in  behalf  of  a  co-defend- 
niaterial.  The  result  does  not  appear  ant  who  has  pleaded  ;  for  it  should  seem, 
from  the  report,  nor  does  it  appear  that  where  the  plea  set  up  by  the  latter 
whether  the  nature  of  the  testimony  of  is  of  such  a  nature  as  to  shew  that  the 
the  witness  was  such  as  might  tend  to  re-  plaintiif  could  have  no  real  cause  of  ac- 
duce  the  damages.  In  V\  ard  v.  Haydon,  tion  against  any  of  the  defendants,  the 
the  action  was  trover  for  a  carriage,  and  defendant,  who  has  suffered  judgment 
the  witness  was  called,  not  upon  any  by  default,  will  be  entitled  to  the  benefit 
point  connected  with  the  value  of  the  of  the  defence  if  established.  SeeTidd's 
carriage,  but  only  to  show  that  the  con-  Prac.  9  edit.  894,  895.  2  Stra.  1108, 
duct  of  the  other  defendant  was  not  such  1222.  Where  the  defence  of  the  party, 
as  amounted  to  a  conversion  by  him.  who  has  pleaded,  goes  merely  to  his  own 
See  the  note  in  the  report  of  this  case  personal  discharge,  without  affecting  the 
in  I'eaUe's  Add.  Ca.  126,  with  reference  plaintiif 's  right  of  action  against  his  co- 
to  the  question  whether,  according  to  defendant,  of  course  this  difficulty  would 
the  practice  of  the  Court,  the   witness  not  arise. 

(a)  "  I  am  aware  that  there  are  some  cases,  in  which  when  the  liability  of  the 


St!Ct.  l.J       Incompetency  of  Parlies  to  the  Suit.   •  49 

*Whatever  may  be  the  true  rule  with  regard  to  the  compe-  J"^""']!!'^,^^ 
tency  of  one  of  several  defendants,   who  has   suffered  judg-  co-defend- , 
ment  by   default,   as  a  witness  for  his  co-defendants,    it  has  ^[■"'^k^  i 
been   ruled  at  nisi  priiis,    that  he  will  not  be  an  admissible    L  -■ 

witness  for  the  plaintiff  against  them.  In  the  case  of  Chap- 
man V.  Graves,  (1)  which  was  an  action  of  trespass  against 
three,  Mr.  Justice  I^e  Blanc  rejected  one  of  the  defendants, 
Avho  had  suffered  judgment  by  default,  and  was  tendered  as  a 
Avitness  against  the  others  who  had  pleaded,  and  he  distin- 
guished the  case  from  Ward  v.  Haydon,  by  observing,  that 
there  the  witness  was  called  to  exculpate  his  co-defendant, 
but  that  here  he  was  called  to  inculpate  the  others.  He  also 
observed,  that  the  general  rule  was,  that  a  party  to  the  record 
was  not  an  admissible  witness,  and  that  where  there  had  been 
an  innovation  of  the  rule  he  was  not  disposed  to  extend  it.  (2) 

In  a  joint  action  of  ejectment  against  two  defendants,  a  de-  co!de7emj'- 
fendant,  who  suffers  judgment  by  default,  has  been  consider-  amsuflering 
ed  a  competent   witness  for  the  plaintiff,   to  prove  the  other  b'yfierauit. 
defendant  in  possession.  (3)     Lord  EUenborough  in  this  case  Compeieut 
said,  that  a  verdict  for  the  plaintiff  would  not  prevent  him  ["^  P^?'"' 
from  *suing  the  witness  for  mesne  profits  ;  and  that  the  only    r  *5o  ] 
supposed  interest  imputable  to  the  witness  was  the  possibility, 
that  the  plaintiff  would  sue  the  other  defendant  alone,  but  that 

(1)  Camb.  333,  n.  amount   of  damages  against  them,    ag 

(2)  These  expressions  would  appear  there  is  no  contribution  between  wrong 
to  countenance  the  notion  of  a  technical  doers,  the  witness  might,  by  means  of 
rule  disqualifying  parties  to  the  record  his  evidence,  escape  tiie  payment  of  any 
as  parties,  without  reference  to  the  ques-  part  ;  but  as  the  plaintitf  might,  if  he 
tion  of  interest.  See  also  S  Taunt.  139.  thought  proper,  levy  the  whole  amount 
But  vide  supra,  and  7  Bing.  398.  With  against  the  witness,  wlio  in  such  case 
reference  to  the  distinction  between  ex-  would  have  no  remedy  for  contribution 
culpating  and  inculpating  the  other  de-  against  the  others,  the  witness  would 
fendants,  it  is  observable,  that  by  ex-  appear  to  have  no  certain  interest  in  fix- 
culpating  them,  a  defendant  who  has  ing  them,  but  only  the  prospect  ofa  con- 
s-ufl'ered  judgment  by  default,  subjects  tingent  advantage,  and  qic.  if  this  could 
himself  to  the  sole  liability  of  all  the  be  a  good  ground  of  disqualification  ? 
damages  the  jury  may  assess  against  him  ;  See  per  Lord  EUenborough.  Dee  ». 
while,  by  inculpating   them,    he    makes  Green,  4  Esp.  198,  infra. 

them  jointly   liable   with  him.     And  if        (3)  Doe  v.  Green,  4  Esp.  198. 
the   plaintiff    should   levy    the     whole 

defendant  is  fixed,  he  may  be  admitted  to  prove  that  his  co-defendant  is  not  liable; 
such  as  actions  in  tort,  wliere  if  ono  defendant  has  suflered  judgment  to  go  by  de- 
fault, he  may  give  evidence  that  a  co-defendant  is  not  chargeable  ;  3  Stark,  ev. 
part  4,  1063.  15ut  these,  I  take  it,  are  rather  exceptions  to  the  general  rule,  which 
is  one  founded  in  some  measure  on  policy,  to  prevent  perjury;  id.  1061;  2  Campb. 
334,  note.  Per  6  Calcock,  J.  1  Bail,  R.  308. 
(a)See  Jackson  v.  M.  Chesney,  7  Cowen,  360;  16  S.  &  R.  193;  3  Watts,  R.  74. 
The  court  consider  the  parlies  as  they  really  are;  the  lessors  as  the  parlies  in  in- 
terest, and  the  nominal  plaintiff  as  an  ideal  and  fictitious  person;  and  the  coyrt  prac- 
tice upon  the  mu.xiiii  that  fiction  bhall  do  no  pitjudice.  Held,  that  a  release  from 
one  ol  two  lessors  of  the  plaintiff  was  no  bur  to  the  uctioii.  2  Wend  .341 ;  4  M.  &  !5. 
301. 


50 


Inco7Jipctc7icy  of  Parties  to  the  Suit.         [Ch.  (y. 


Competent 
for  defend- 


Dcfcndant 
pleading 
bankruptcy 
—compe- 
tent for  co- 
defendant 
after  nolle 
prosequi. 


*56] 


this  remote  and  possible  interest  would  not  render  the  witness 
incompetent. 

It  appears  also  that  one  of  several  defendants  in  ejectment, 
in  possession  of  part  of  the  premises,  and  who  sulfers  judg- 
ment by  default  as  to  such  part,  will  be  competent  to  give 
evidence  for  a  co-defendant  who  ])leads.  In  IJuller's  Nisi 
Prius,  ( 1 )  it  is  said  that  if  a  material  witness  for  the  defend- 
ant in  ejectment  be  also  made  a  defendant,  the  right  way  is 
for  him  to  let  judgment  go  by  default ;  but  if  he  plead,  and 
by  that  means  admit  himself  to  be  tenant  in  possession,  the 
Court  will  not  afterwards  upon  motion  strike  out  his  name. — 
In  such  a  case,  adds  Mr.  J.  Duller,  if  he  consent  to  let  a  ver- 
dict be  given  against  him  for  so  much  as  he  is  proved  to  be  in 
jiossession  of,  I  see  no  reason,  why  he  should  not  be  a  wit- 
ness for  another  defendant.  (2) 

2.  Effect  of  a  nolle  prosequi. 

It  has  been  decided,  in  several  cases,  that  if  one  of  several 
defendants,  in  an  action  on  a  joint  contract,  pleads  bankrupt- 
cy and  certificate,  and  the  plaintiff,  instead  of  denying  the 
plea,  admits  it,  and  enters  a  nolle  prosequi,  as  to  the  defend- 
ant pleading  it,  such  defendant  will  be  a  competent  witness 
for  a  co-defendant  who  has  pleaded  to  the  merits.  (3)  In  a 
late  case,  this  point  arose  in  an  action  against  two  persons, 
who  had  been  partners  upon  a  bill  of  exchange  accepted  du- 
ring the  partnership,  and  Lord  C.  J.  Tindal,  in  delivering  the 
judgment  of  the  Court  of  Common  Pleas,  said,  that  the  only 
question  in  the  case  was,  whether  the  defendant,  who  had 
pleaded,  would  be  entitled  to  sue  the  witness  either  at  law  or 
equity  for  contribution ;  that  it  was  clear,  he  might  have  done 
so  before  the  *stat.  49  Geo,  iii.  c.  121,  s.  8,  but  that  since 
that  statute  the  solvent  partner  was  entitled,  and  consequently 
obliged,  to  prove  under  the  commission,  and  that  the  certifi- 
cate would  be  a  bar  to  any  action  for  contribution  :  the  bank- 
rupt, therefore,  being  discharged  from  all  liability,  was  a  com- 
petent witness  for  the  defendant,  (1)  (a) 


(1)  P.  285. 

(2)  B.  N.  P.  286,  citing  Dormer  v. 
Fortescue,  9  Geo.  2.  Willes,  343,  (n). 

(3)  Said  by  Park,  J.  (7  Taunt.  607) 
to  have  been  so  ruled  by  Le  Hlanc,  .T. 
See  also  Moody  v.  King,  2  B.  &  C 
558.  Mclverw  Humble,  16  East,  171. 

(1)  Aflalow.  Fourdrinier,  6  Bing.  306. 
The  bankrupt  had  released  his  surplus, 
and  thereby  removed  any  interest  he 
might  have  had  in  increasing  the  fund  of 


big  estate  by  defeating  a  demand  in  res- 
pect of  which  the  solvent  partner  might 
have  proved  for  contribution.  See  as  to 
the  eflcct  of  the  49  Geo.  3,  c.  121,  s.  8, 
in  restoring  competency.  Moody  v. 
King,  2  B.  &  C.  558.  Ex  parte 
Young,2  Rose,  B.  C.  40.  Wood  v.  Dod- 
son,  2  M.  &  S.  195.  The  provisions 
of  this  statute  arc  contained  in  sect.  52 
of  6  G.  4,  c.  16. 


(a)A  party  to  the  record  cannot  be  admitted  as  a  witness,  though  he  has  no  interes 
to  disquaiiiy  him.  lu  Scliermerhorn  v.  Schcrmerhorn,  1  Wend.  119,  the  part^ 
called  by  the  plaintiffs  had  a  personal  defence,  a  discharge  under  an  insolvent  act, 


Sect.  1.]        hicompetency  of  Parties  to  the  Suit.  51 

It  may  probably  be  considered,  that  in  these  cases,  the  ef-  ,^J/7*-"L- 
fect  of  the  nolle  prosequi  is  entirely  to  put  an  end  to  the  pro-  qui.  (a) 
ceedings  in  the  action,  as  far  as  the  particular  defendant  is 
concerned,  and  that  conseipicntly,  although  he  was  originally 
one  of  the  parties  to  the  suit,  he  cannot  be  considered  as  a 
party  at  the  time  of  the  trial.  At  all  events,  upon  the  nolle 
prosequi  being  entered  as  to  him,  he  ceases  to  have  any  im- 
mediate interest  in  the  action,  and  the  question  of  interest  in 
the  event  could  only  arise  in  respect  of  a  liability  over  to  the 
other  defendant,  for  whom  he  is  called  as  a  witness.      Where  Notcompe 

^  ....      tcpl  wncrc 

no  nolle  prosequi  is  entered  as  to  the  witness.  Ins  situation  is  no  noik 
obviously  different.  In  an  action  of  assumpsit  on  a  joint  con-  prosequi. 
tract  against  two  defendants,  one  of  whom  had  pleaded  bank- 
ruptcy, and  the  other  had  pleaded  non-assumpsit,  and  issue 
had  been  joined  on  both  pleas.  Lord  Kenyon  refused  to  ad- 
mit the  former  as  a  witness  for  the  latter,  although  it  was 
proposed  to  give  releases  from  the  defendant,  who  had  plead- 
ed to  the  bankrupt,  and  from  the  bankrupt  to  his  assign- 
ees. (2)  His  Lordship  said,  that  the  witness  was  liable  to 
the  costs  of  the  action,  and  that  this  was  an  interest  which 

(2)  Raven  v.  Dunning,  3  Esp.  25. 


■which  was  found  in  his  fuvor  by  the  verdict  of  the  jury  in  the  trial  of  the  very 
cause  in  which  he  was  examined.  The  Court  admitted  he  had  no  interest,  but  yet 
disapproved  of  his  having  been  sworn.  In  Supervisors  of  Chenango  v.  Birdsall,  4 
id.  453,  the  court  said,  that  the  objection  is  not  placed  on  the  ground  of  interest; 
it  arises  from  considerations  of  policy.  And  in  Van  Norden  v.  Striker,  9  id.  286, 
it  was  held,  that  one  nominally  not  a  party  to  the  record,  was  incompetent,  itap- 
pearing  that  he  was  intended  to  be  made  a  defendant. 

By  statute  in  New  York,  all  the  parties  to  a  bill  or  note  may  be  included  in  one 
action.  In  Fuller  v.  Van  SchaicU,  IS  Wend.  547,  it  was  held,  that  the  plaintiff 
might  join  the  makers  and  endorsers  of  a  note  and  declare  either  specially  stating 
the  particular  contract  of  each,  or  only  file  the  money  counts  stating  the  joint  con- 
tract and  serving  a  copy  of  the  bill  or  note  with  the  declaration.  The  money  counta 
in  form  stated  a  joint  contract,  and  the  bill  or  note  could  not  be  given  in  evidence 
under  those  counts,  if  the  statute  had  not  expressly  authorized  it.  The  statute  does 
not  turn  distinct  liabilities  into  a  joint  contract,  but  gives  a  joint  action  to  enforce 
the  several  liabilities  of  different  parties. 

A  nolle  prosequi  as  to  one  class  of  defendants,  as  endorsers,  will  not  discontin- 
ae  the  action  as  to  another  class,  as  drawers  or  makers.  It  is  like  an  action  arising 
ex  delicts  wiiere  the  defendants  are  liable  jointly  and  severally. 

(a)  A  nolle  prosequi  is  neither  a  pardon  nor  an  acquittal.  This  was  adjudged 
in  the  case  of  (joddard  v.  Smith,  6  Mod.  202.  The  plainlilf  sued  a  writ  of  conspir- 
acy against  Smith  et.  al.  for  maliciously  indicting  him  of  barratry,  without  probable 
cause,  of  which  he  was  debito  modo  acquitcd. 

Un  producing  the  record,  it  appeared  that  the  plaintiff  was  discharged  of  the  in- 
dictment by  a  nolle  prosequi,  and  the  court  held  lie  was  not  acquitted.  In  Com- 
monwealth V.  Wheeler,  2  Mass.  172,  a  nolle  prosequi  entered  on  an  indictment 
for  an  assault  and  battery  was  held  not  a  bar  to  another  indictment  for  the  same 
offence.  Parsons  C.  J.  observes — "  when  it  is  entered  on  a  defective  indictment 
there  can  be  no  cause  to  complain.  For  altliougli  the  defendant  may  be  tried  on 
another  indictment;  so  he  may  also  alter  judgment  is  arrested  on  an  insufficient  in- 
dictment." See  Commonwealth  w.  IJriggs,  7  Pick.  177,  where  the  plea  set  forth 
as  matter  of  aggravation  a  former  conviction  for  a  like  offence,  the  court  held,  tha/t 
a  nolle  protequi  as  to  Uiat  mailer  was  properly  entered  after  a  conviction. 


no. 


Incompctcnry  of  Parties  to  the  Suit.         [Ch.  G. 


Srpnrato 
verdict  not 
alloweil. 


[  *57  ] 

Emniett  t>. 
I'xiiler,  scp- 
araic  ver- 
dict n(.t  al- 
lowed. 


Separate 
verdict  al- 
lowed. 


[  *5S  ] 

ElTect   01 
separate 
verdict,  in 
re^lorin? 
competency 
Sec  irifra. 


could  not  be  released.  In  a  snhseqnent  case  of  the  same  de- 
scription, before  Lord  EUenborough,  the  certificate  of  the 
bankrupt  was  put  in,  and  it  was  proposed  that  a  verdict  should 
be  taken  in  his  favour,  and  that  he  should  then  be  called  as  a 
witness  for  the  other  defendant,  but  Lord  Ellenborough  refu- 
sed to  permit  this  course  to  be  taken,  and  the  witness  *was 
rejected.  (1)  So  in  a  later  case,  (2)  in  which  two  out  of  five 
defendants  in  an  action  of  assumpsit  pleaded  bankruptcy,  and 
the  plaintitf  had  proved  under  their  commission,  thereby  elect- 
ing to  take  the  benefit  thereof,  it  was  held,  by  the  Court  of 
Common  Pleas,  that  these  defendants,  having  substantiated 
the  plea,  were  not  entitled  to  a  separate  verdict  in  their  fa- 
vour, in  order  that  they  might  be  called  as  witnesses,  on  be- 
half of  the  other  defendants  who  had  pleaded  the  general  is- 
sue. It  was  contended  in  this  case,  that  the  proposed  witnes- 
ses were  disinterested,  inasmuch  as  they  were  entirely  dis- 
charged from  either  contribution  or  costs  by  the  stat.  49  Geo. 
III.  c.  121,  and  that,  having  proved  their  plea,  they  were  en- 
titled to  a  verdict ;  but  the  Court  held  otherwise  :  Gibbs,  C. 
J.  said  he  knew  no  law  which  required  a  judge  to  stop  in  the 
middle  of  a  cause,  to  consider  separately  the  case  of  certain 
of  the  defendants,  in  order  that  they  might  be  made  witness- 
es for  the  other  defendants.  (3) 

But  in  a  more  recent  case,  at  7iisi  pi'ius,  where  one  defend- 
ant had  pleaded  bankruptcy,  and  the  other  to  the  merits  of 
the  action,  and  it  was  proposed,  that,  on  proof  of  the  bank- 
rupt's certificate,  a  verdict  should  be  taken  for  him,  in  order 
that  he  might  appear  as  a  witness  for  his  co-defendants,  Parke, 
J.  ])crmitted  this  course  to  be  adopted,  and  the  witness  was 
admitted.  (4) 

The  effect  of  the  separate  verdict  appears  to  be  the  same  as 
*that  of  a  nolle  prosequi,  in  putting  an  end  to  the  proceedings, 
as  far  as  the  bankrupt  is  concerned,  and  in  depriving  him  of 
all  immediate  interest  in  the  result  with  regard  to  the  other 
defendants.  It  will  be  seen,  presently,  that  one  of  several 
defendants  has  been  frequently  made  a  competent  witness  for 


(1)  Currie  v.  Child,  3  Campb.  28.'?. 

(2)  Eminett  v.  Butler,  7  Taunt.  599. 
1  Moore,  332,  S.  C. 

(3)  7  Taunt.  G06. 

(4)  Hate  w.  Kussell,  Mo.  &  .Ma.  N. 
P.  C.  332.  In  this  ease  upon  the  pre- 
ceding cases  of  Raven  v.  Dunning,  Cur- 
rie XI.  Child,  and  Emmett  v.  Butler,  be- 
ing cited  as  authorities  against  the  ad- 
missibility of  the  witness,  Parke,  J.  ob- 
served, that  they  were  no  longer  in  point, 
in  consequence  of  the  altered  state  of  the 
bankrupt  laws,  but  that  he  would  give 
no  opinion  on  the  cotnpetency  of  the 
witness,  but  would  admit   him,   giving 


leave  to  move.  No  motion  was  made 
on  the  question  of  competency,  and  the 
point  appears  the  same  as  in  Aflalo  v. 
Fourdrinier,  6  Bing.  306,  supra  56.  It 
is  observable,  however,  that  the  cases  of 
(,'urrie  v.  Child  and  Emmett  v.  Butler, 
both  occurred  after  the  49  Geo.  3,  c. 
121,  (by  the  operation  of  which  statute 
it  was  decided,  that  the  bankrupt  be- 
came competent  in  Aflalo  v.  Fourdrin- 
ier), but  these  cases  seem  to  have  pro- 
ceeded less  upon  the  ground  of  incom- 
tency  in  the  witness,  than  upon  the  pro- 
priety of  allowing  a  separate  verdict  to 
be  taken  in  his  favour  at  tlie  trial. 


Sect.  1.]       Incompetency  nf  Parties  to  the  Suit.  53 

his  co-defendant,  by  the  effect  of  a  separate  verdict  in  an  ac- 
tion of  tort,  but  the  case  just  cited  appears  to  be  the  first,  in 
which  this  course  has  been  allowed  to  be  taken  in  an  action 
on  a  contract.  It  would  however  appear  to  be  difficult  to  as- 
sign any  good  reason  for  not  permitting  the  practice  to  be 
adopted  in  actions  of  contract,  and  it  is  obvious,  that  if  it  were 
not  allowed,  it  Avould  be  in  the  plaintiff's  power  to  deprive 
the  defendant,  who  had  pleaded  to  the  action,  of  the  benefit 
of  the  evidence  of  the  bankrupt,  by  joining  issue  on  the  plea 
of  bankruptcy,  instead  of  entering  a  nolle  prosequi,  although 
there  might  be  no  pretence  for  questioning  the  truth  of  the 
plea. 

We  shall  now  proceed  to  notice  the  cases,  in  which  a  de- 
fendant in  an  action  of  tort  may  be  rendered  a  competent  wit- 
ness for  his  co-defendants,  by  the  effect  of  a  separate  verdict 
at  the  trial. 

f    3.  As  to  a  Separate  Verdict  at  the  Trial. 

The  general  principle,  which  governs  the  decisions  on  this  aiu'in^/Tr/ 
subject,  is  laid  down  by  C.  B.  Gilbert,  as  follows  :  If  any  per-  unnecessa- 
son,  be  arbitrarily  made  a  defendant,  to  prevent  his  testimony  General ' 
in  the  cause,  the  plaintiff  shall  not   prevail  by  that  artifice,  principle, 
but  the  defendant,  against  whom  nothing  is  proved,  shall  not- 
withstanding be  sworn  ;  for  here  the  defendant  does  not  swear 
in  his  own  justification,   but  in  justification  of  another  with 
whom  he  was  unnecessarily  joined  ;    and  if  this  were  not  al- 
lowed, the  plaintiff  might  turn  all  the  several  witnesses  into 
defendants,  and  thus  might  be  able  to  prove  what  he  pleased, 
without  contest.  ( 1 )     But  this  rule  must  be  understood  to  ap- 
ply to  those  cases  only,  where   there  is  no  kind  of  evidence 
against  such  defendant ;    for  it  is  laid  down,  that  if  there  be 
any  evidence  against  him,  though  not  enough  to  convict  him, 
in  the  ^judge's  opinion,  he  cannot  be  called  as  a  witness,  but    [  *59  ] 
his  guilt  or  innocence  must  await  the  event  of  the  verdict,  the 
jury  being  judges  of  the  fact.  (1) 

In  order  to  render  a  party,  so  unnecessarily  sued,  competent  Separate 
to  give  evidence,   the  jury  are  directed  to  find  a  separate  ver-  ken. 
diet  in  his   favour,  and,  the  cause  being  then  at  an  end  with 
respect  to  him,    he  may  be  called  as  a  witness  on  behalf  of  a 
co-defendant.     Some    contrariety  of    practice  has  prevailed  Practice— 

..,  X   ^      .1  -1  f    \  t  •    1      1        tinieoftak- 

with  respect  to  the  particular  stage  of  the  cause,  at  which  the  ing  verdict, 
separate  verdict  may  be  taken  in  favour  of  the  party  or  parties 
unnecessarily  sued.  In  some  cases,  the  rule  laid  down  has 
been,  that  one  of  several  defendants  is  not  entitled  to  a  ver- 
dict sei)arately  from  the  rest,  immediately  at  the  close  of  the 
plaintiff's  case,  but  must  wait  until  the  whole  of  the  case  of 

(1)  r^iilb.  Evi.J.  117.    Hul.N.P.285.  {\)Ibid. 


54  Incompetency  of  Parties  to  the  Suit.  [Ch.  6. 

the  other  defendants,  exclusive  of  the  evidence  Vviiich  he  may- 
have  to  give,  is  entirely  finished.  (2)  But  it  is  now  settled, 
by  the  unanimous  opinion  of  all  the  judges,  that  a  defendant 
against  whom  the  plaintilF  has  adduced  no  evidence,  is  enti- 
tled to  a  separate  verdict  immediately  upon  the  close  of  the 
plaintiff's  case.  (3)  [a) 

(2)  Wii>;ht  V.  Paulin,  Ry.  &  Mo.  N.  it  was  not  allowed.  In  the  latter  case, 
P.  C.  128.  Ward  v.  Bourne,  Trin.  T.  Dallas,  J.,  and  P.urrougli,  J.,  distinguish- 
1821,  MS.  IJuxicy  u.  Berg,  1  Stark,  ed  the  case  before  the  Court  fiom  the 
N.  P.  C.  93.  Wynne  v.  Anderson,  3  cases  in  actions  of  tort,  on  the  ground. 
Car.  &  P.  596.  that  in   those   actions   a  defendant  was 

(3)  Per  Parke,  .T.,  6  Car.  &  P.  215.  allowed  to  have  a  separate  verdict  only 
Child  V.  Chamberlain,  and  see  Russell  where  he  could  ask  it  at  the  close  of 
V.  Rider,  6  Car.  &  P.  416.  It  has  al-  the  plaintiff's  case,  in  consequence  of 
ready  been  observed,  that  the  cases,  in  the  absence  of  any  evidence  to  fix  him  ; 
which  a  separate  verdict  has  been  allow-  but,  in  the  former  case,  the  plea  of  the 
ed  to  be  given  for  one  of  several  de-  defendants  could  only  be  established  by 
fendants,  in  order  to  enable  him  to  ap-  normative  evidence  offered  by  them- 
pear  as  a  witness  for  the  rest  have  been  selves.  It  is  observable  that  in  Emmett 
for  the  most  part  cases  of  actions  of  v.  Butler,  the  plea  was  not  the  common 
tort.  It  is  obvious,  tiiat  the  question  one  of  bankruptcy  and  certificate,  but 
can  rarely  arise  in  aclions  of  contract,  that  the  plaintiffs  had  proved,  and  there- 
except  in  cases  where  one  of  several  de-  by  made  their  election.  Where  a  plea 
fendants  pleads  a  pica  of  personal  dis-  is  special,  and  involves  the  consideration 
charge,  such  as  bankruptcy  and  certifi-  of  many  facts,  it  is  obvious,  that  there 
cate.  See  art<e,  57.  Bate  u.  Russell,  would  be  much  inconvenience  in  split- 
Mo.  &  Ma.  332,  where  a  separate  ver-  ting  the  case,  and  taking  separate  ver- 
<lict  was  allowed  to  be  taken.  And  diets  ;  but  there  seems  to  be  no  such  in- 
Currie  v.  Child,  3  Carnpb.  2S3,  and  convenience,  where  the  whole  proof 
Emmett  v.  Butler,  7  Taunt.  599,  where  consists  of  the  bankrupt's  certificate. 

(a)  In  Gilmore  v.  Bowden,  3  Fairf.  R.  412,  it  is  said,  that  the  few  exceptions 
that  have  obtained,  admit  the  generality  of  the  rule.  It  is  not  that  a  party  to  the 
record  shall  not  be  permitted  to  testify  in  his  favor;  but  that  he  shall  not  be  ad- 
mitted as  a  witness.  The  exception  in  regard  to  defendants  in  tort,  against  whom 
no  testimony  has  been  adduced,  is  a  matter  not  of  right,  but  depends  on  the  judge 
Sit  nisi prius,  who  will  or  not  at  his  discretion,  direct  the  trial  and  acquittal  of 
such  defendant  firstift.  Sawyer  v.  Rlorrell,  10  Pick.  16.  But  in  the  case  of  Van  Du- 
zen  V.  Van  Slyek,  15  J.  R.  223,  the  court  below  had  refused  to  have  one  defend- 
ant acquitted,  against  whom  there  was  no  evidence,  because  both  defendants  had 
joined  in  one  plea,  wiiich  was  the  general  issue  ;  and  the  court  said  that  although 
they  joined  in  the  plea  oi  not  guilty,  one  may  be  found  guilty  and  the  other  not 
Jilthough  an  opinion  to  the  contrary  had  been  expressed  in  Schermerhorn  v.  Tripp, 
2  Caines,  108.  If,  however,  several  defendants  join  in  a  justification  of  a  tres- 
pass, the  court  cannot  sever  the  justification  and  say  that  one  is  guilty  and  the  oth- 
er not,  when  they  all  put  themselves  on  the  same  terms.  Higby  u.  Williams,  16 
J.  R.  217.  The  rule,  Ch.  J.  Spenser  says,  is  very  artificial  and  ought  not  to  be 
extended  to  the  general  issue  pleaded  jointly.  In  Batef  v.  Conkling,  10  Wend. 
3S9,  which  was  an  action  of  trover,  and  defendants  pleaded  the  general  issue  and 
justified  under  a  judgment  and  execution  against  one  R: — The  Court  said,  "  Tliat 
there  were  two  reasons  why  the  court  below  should  not  direct  a  verdict  in  favor  of 
W.  (one  of  the  defendants):  one,  that  he  had  jointly  with  the  other  defendants 
pleaded  a  justification;  the  other  that  there  was  not  only  some,  but  strong  evidence 
against  him." 

In  the  case  last  cited  also,  a  verdict  in  the  justices  court  had  been  rendered  in 
favor  of  one,  but  as  both  had  appealed,  the  court  considered  him  incompetent:  for 
the  appeal  brings  up  the  whole  case  for  review,  and  the  issue  joined  before  the  jus- 
tice, and  no  other,  (see  2  R.  S.  262  S.  214)  shall  be  tried  on  the  appeal.  See 
-also  7  Cowen,  192. 

The  want  of  evidence  to  entitle  a  party  te  be  a  witness  should  be  so  glaring  and 


Sect.  1.]        Incompetency  of  Parties  to  the  Suit.  55 

*In  an  action  of  tort,  where  a  particular  person  is  named  in  ^^f ^^"g'"' 
the  declaration,    as  having  been  engaged  in  committing  the  declaration 
alleged  injury,  but  has  not  been  made  a  defendant  in  the  suit,  ^as^J^'^b^it 
he  will  be  a  competent  witness.     Thus  in  trespass,  where  the  not  made  a 
declaration   alleged,  that  the  defendant,  together  with  A.  B.,  ^^r'^^^^Q  i 
committed  the  alleged  wrong,  and  the  defendants  pleaded,    ^         ^ 
that  A.  B.  paid  the  plaintiif  a  guinea  in  satisfaction,  and  issue 
was  joined    thereon,  the  defendant  called  A.  B.  as  a  witness, 
and  Eyre,  C.  J.,  permitted  him  to  be  examined.  (1)     It  is  ob- 
vious, that  in  this  case,   although  the  party  is  named  in   the 
record,  he  is  not  a  party  to  the  suit,  and  the  grounds  that  would 
disqualify  a  co-defendant  in  trespass  from   giving  evidence, 
would  not  apply  to  the  witness  in  the  preceding  case,for  not  be- 
ing a  party,  he  could  not  be  immediately  affected  by  the  event 
of  the  suit,  either  in  regard  to  the  damages  sought  to  be  re- 
covered, or  the  costs  ;  if  the  plaintiff  succeeded,  the  witness 
would  not  be  liable  to  an  action  for  contribution,  for  there  is 
no  contribution  between  wrongdoers ;    and  if  the  plaintiff 
failed,  and  afterwards  sued  the  witness,  the  verdict  in  the  for- 
mer action  would  not  be  evidence  in  the  witness's  favour.    It 
appears,  however,    to  have  been  considered  that  if  the  plain- 
tiff could  prove  a  party  named  in  the  simul  cum.  guilty,  and 
shew  that  he  was  made  a  party,  by  producing  the  original  or 
process  against  him,  and  proving  an  ineffectual   endeavour  to 
arrest  or  serve  him,  the  defendant  would  not  be  allowed  to 
have  the  benefit  of  his  testimony.  (2)     But  if  nothing  can  be 
proved  against  the  witness,  he  is  clearly  competent.  (3) 

Where  a  material  witness  for  the  plaintiff  is  by  mistake  ^^'''y  ^''*' 

X  -*  ness  ior 

made  a  defendant,  the  Court  will  on  motion  suffer  his  name  to  plaintiff, 
be  *struck  out  of  the  record,  even  after  issue  joined,  and  then  [enjantty 
he  may  be  examined  ;    ( 1 )  or  in  the  case  of  an  information,  mistake. 
the  Attorney  General  may  enter  a  nolle  prosequi^  as  to  one  of    [  *01  ] 
the  defendants,  and  so  make  him  a  witness.  (2) 

If  a  material  witness  for  a  defendant  in  ejectment  has  been  Ejectmem. 
made  a  co-defendant  through  mistake,  it  is   said  that,   after 
plea,  the  Court  will  not,  upon  motion,  strike  out  his  name.  (3) 

(1)  Poplett  V.  James,  B.  N.  P.  286.  defeat  the  plaintiff,  after  he  had  prcvcn- 

(2)  Reazon  v-  Evvbank,  B.  N.  P.  ted  the  plaintiff  from  proceeding  effectu- 
286.  Sec  also  per  Lord  Hardwicke,  ally  against  him,  by  his  own  wrongful 
Lloyd  V.  Williams,  R.  T.  IL  123.  In  act  in  eluding  the  process.  Soe  1  Atk. 
the  latter  case,  the  plaintiff  had  proceed-  452. 

ed  to  outlawry  against  the  proposed  wit-  (3)  Page  v.  Crook,  Sty.  401,  nsd  see 

ne.ss,    and  ho  was  rejected.     See    also  1  k\k.  4.'i2. 

Hill  V.  Flcmming,  R.  T.  II.  264.  These  (1)  1  Sid.  441,  Bui.  N.  P.  285. 

cases  appear  to  have  proceeded  on  the  (2)  Rep.  temp.  Hardw.  163,  B.  N.  P. 

ground,  that  a  co-trespasser,  who   had  28.5. 

been  originally  made  a  party  to  the  suit  (3)  B.  N.  P.  2S5,  citing  Dormer  c 

upon  sutliciont  grounds,   ought  not  to  be  Fortescuc,  Willes,  343,  n. 

allowed  to  come  forward  as  a  witness  to 

obvious,  as  to  afford  strong  grounds  lor  belief  that  ho  was  arbitrarily  made  a  defend- 
ant to  prevent  hia  testimony.     Brown  «.  Howard,  14  J.  R.  122. 


56 


Incompetency  of  Parties  to  tlie  i^uil. 


ICh.  6. 


Wc  have  seen,  that,  he  will  be  a  competent  witness,  if  he  suf- 
fer judgment  by  default.  (4)  And  Mr.  Justice  Buller  ob- 
serves, (5)  with  reference  to  the  case  of  a  tenant  in  posses- 
sion of  part  of  the  premises,  "  if  lie  consent  to  let  a  verdict  be 
given  against  him  for  so  much  as  he  is  proved  to  be  in  posses- 
sion of,  I  see  no  reason  why  he  should  not  be  a  witness  for 
another  defendant." 

Section    II. 


Parly  injur- 
ed. («) 


Proseciittr 
or  parly  in- 
jured, is 
{generally 
compcleut. 

No  direct 
interest. 


[  *G2  ] 


No  indirect 
iutcrcst. 


Of  the  Competency  of  Parties  to  Criminal  Prosecutions ,  and 
of  the  Party  injured  by  tJie  Offence. 

In  treating  of  the  subject  of  the  present  section  we  shall,  in 
the  first  place,  consider  the  competency  of  the  prosecutor  or 
party  injured  by  the  ofience,  who  is  generally,  though  not 
necessarily  nor  always,  the  prosecutor. 

The  general  rule  is  that  the  prosecutor,  or  party  injured  by 
an  offence,  is  a  competent  witness  on  the  part  of  the  prosecu- 
tion. An  indictment,  though  commonly  set  in  motion,  and 
carried  on  at  the  instance  of  the  party  injured,  is  in  fact  a  pro- 
ceeding instituted  in  the  name  and  on  the  behalf  of  the  crown  ; 
and  its  object  is  not  the  reparation  of  individual  injury,  but 
the  satisfaction  of  public  justice.  The  single  question,  upon 
which  the  jury  pronounce  their  verdict,  is  the  innocence  or 
guilt  of  the  prisoner.  And  the  prosecutor  or  party  injured 
has,  in  general,  no  direct  interest  in  the  determination  of  the 
question,  *or  in  the  sentence  which  follows  a  conviction.  In 
civil  suits,  a  party  to  the  proceeding,  who  has  no  beneficial 
interest  in  the  question  in  controversy  upon  the  record,  is  com- 
monly incompetent  to  give  evidence,  upon  the  ground  of  an 
interest  in  the  question  of  costs  ;  but  in  criminal  proceedings, 
it  is  well  known  that  the  costs  are  in  general  not  dependent 
upon  the  event  of  the  prosecution.  (1)  Except  therefore,  in 
particular  cases,  which  will  be  presently  noticed,  a  prosecutor 
or 'party  injured  has  no  direct  interest  in  the  event  of  the  pros- 
ecution. 

But  although  the  prosecutor  or  party  aggrieved  is  in  gener- 
al free   from  direct  interest,    it  was  formerly  supposed  that  he 

(4)  Ante,  55,  and  Doe  w,  Green,  4 
Esp.  198. 

(5)  B.  N.  P.  285. 
(1)  The  general  power  of  awarding 

costs  in  crinninal  trials  depends  upon  the 


Stat.  7  Geo.  4,  c.  64,  s.  22,  23,  which 
gives  a  discretionary  power  to  the  Court, 
without  any  reference  to  the  result  of 
the  proceedings. 


(a)  Evidence  that  the  prosecutor  offered  to  compromise  the  offence  is  not  admissi- 
ble. The  People  v.  Gcnung.ll  Wend.  18.  The  prosecution  was  for  obtaining  prop- 
erty by  false  pretences;  and  the  Court  say  "  admitting  that  he  had  improperly  en- 
deavoured to  comproiuLse  the  prosecution,  his  positive  testimony  was  not  thereby 
impeached." 


Sect.  2.j      Incompetency  of  Parlies  to  the  Suit.  57 

was  incompetent,  by  reason  of  an  indirect  interest  arising 
from  tlie  use  of  the  record  of  conviction,  as  evidence  in  his 
favour  in  a  subsequent  civil  suit. 

In  treating  upon  documentary  evidence  in  a  subsequent  part 
of  the  work,  it  will  be  seen  that  the  record  of  a  judgment  ob- 
tained in  one  proceeding,  may  often  be  used  as  evidence  of 
the  facts  appearing  to  have  been  decided  by  such  record,  in 
some  subsequent  proceeding  :  and,  in  considering  the  appli- 
cation of  the  rule  of  incompetency  from  interest  with  regard 
to  pereons  not  parties  to  the  suit,  it  will  appear,  that  such  per- 
sons, though  free  from  all  direct  interest  in  the  event  of  the 
particular  suit,  were  often  disqualified  by  reason  of  an  indi- 
rect interest,  arising  from  the  circumstance  of  their  being  so 
situated  with  regard  to  the  question  in  controversy  in  that  suit 
that  the  record  of  the  verdict  or  judgment  therein  might  be 
used  as  evidence  for  or  against  their  own  claims,  in  some  sub- 
sequent suit  by  or  against  themselves.  Upon  the  same  prin- 
ciple it  was  formerly  supposed,  that  a  prosecutor  or  party  in- 
jured in  a  criminal  prosecution,  who  had  no  direct  interest  in 
the  event,  might  nevertheless  avail  himself  of  the  record  of  a 
conviction  as  evidence  in  his  own  favour  in  a  subsequent  civil 
suit,  and  that  this  power  of  availing  himself  of  the  record  in 
support  of  *his  own  interest  on  a  subsequent  occasion,  was  an  [  *63  J 
indirect  interest,  which  rendered  him  incompetent  to  give  ev- 
idence in  support  of  the  indictment. 

But  it  has  now  become  an  established  rule  in  all  the  courts,  General 
that  a  verdict  in  a  criminal  prosecution  can,  in  no  case,  be  us-  Record  not 
ed  as  evidence  in  a  subsequent  civil  suit,  either  at  law  or  in  eq-  admissible, 

^  .  '  .^     where  pros- 

uity,  on  behalf  of  a  party  who  has  himself  been  called  as  a  wit-  ecutora 
ness  on  behalf  of  the  prosecution.  (1)(«)  From  hence  it  appears  ^'^"^**- 
to  follow,  that  no  objection  on  the  ground  of  an  indirect  inter- 
est in  the  record  for  the  purposes  of  evidence  can  be  made  to 
the  prosecutor  or  party  agrieved,  who  has  appeared  as  a  wit- 
ness in  suj)port  of  the  indictment,  because,  by  the  very  act  of 
appearing  in  the  character  of  a  witness,  such  party  gives  up 
all  power  of  using  the  verdict  as  evidence,  in  his  own  favour, 
on  any  subsequent  occasion. 

One  of  the  earlier  cases  in  which  the  prosecutor  appears  to  f^J^l^/_  ^^ 

ecuior  re- 

(1)    Bartfelt   ».   Pickersgill,   4    East,  Taunt.  520.     In   treating  of  records   in  jeciecl. 

577,    n.    (e)     4    Bur.    2255.     1    Eden  criminal  proceedings   infra,  it   will    be 

515.     1    Cox,    15.     R.    V.    Boston,    4  seen   that   their    inadmissibility  in    civil 

East,  572,  581.     Smith  v.  Rummers,  1  suits    has    sometimes    been    rested    on 

Campb.   9.     Hathaway  v.   Barrow,    1  broader   principles   than  that   which   is 

Campb.  151.     Bardoa  v.  Browning,    1  stated  in  the  text. 

(a)  In  Maybec  v.  Avery,  18  J.  R.  852,  Spencer  C.  .T.  says — "  I  entirely  concur 
with  I'liillipps  cv.  237,  241,  and  Pcake  on  cv.  3d  cd.  40,  47,  that  the  convic- 
tion ought  not  to  be  received  as  evidence  at  all,  where  the  party  aggrieved,  and 
who  in  a  parly  in  the  civil  suit,  was  a  witness  on  the  prosecution,  for  it  would  be 
ioipossible  to  say  what  influence  his  evidence  hud  in  inducing  the  verdict." 

8 


-  SS  Inrunipciciinj  of  Parlies  to  Ike  SiiiL  [(JIi.  6. 

have  been  rcjoctccl  on  the  ground  of  an  indirect  interest,  was 
the  case  of  T/ir  K'uii^'  v.  Whiiiti^^  where,  upon  an  indict- 
ment for  a  fraud,  in  obtaining  a  promissory  note  from  the 
))roiJecutor,  ag;iiiist  whom  an  action  had  been  brought  upon 
the  note,  it  was  held,  that  the  prosecutor  was  an  incompetent 
witness  for  the  prosecution,  on  the  ground  that  the  conviction 
of  the  defendant  would  influence  the  jury  on  the  trial  of  an 
action  on  tlie  note.  So  in  iiidictmeiUs  for  perjury  alleged  to 
have  been  committed  by  the  defendant,  on  the  trial  of  an  ac- 
tion of  ejectment,  (2)  or  in  a  suit  in  equity  (3)  to  which  the 
prosecutor  was  a  party,it  was  considered  that  the  prosecutor  was- 
an  incompetent  witness  in  support  of  the  indictment,  on  the  sup- 
position that  he  might  derive  some  benefit  in  the  civil  proceed- 
ings, by  convicting  the  defendant  of  perjury.  And  where  the  in- 
dictment was  for  perjury  in  a  civil  action,  in  which  judgment 
[  *64  ]  had  been  obtained  *against  the  prosecutor  on  the  testimony  of 
the  party  indicted,  it  was  thought  an  indispensable  requisite  to 
show,  that  the  judgment  had  been  satisfied,  on  the  supposi- 
tion that  the  prosecutor,  in  the  case  of  his  procuring  a  con- 
viction, might  use  it  for  the  purpose  of  obtaining  relief  in  equi- 
ty against  the  judgment.  (1)  And  even  where  the  prosecu- 
tor, had  actually  paid  the  money  to  which  he  had  become  lia- 
ble through  the  testimony  of  the  party  indicted,  he  Avas  still 
considered  incompetent,  if  he  had  filed  a  bill  in  equity  for  re- 
lief, (2) 

Casos—  On  the  other  hand,  the    principle  of  the  decision  in    R.  v. 

rec'eived"'  Whiting,  after  having  been  questioned  by  Lord  Hard- 
wicke,  (3)  was  overruled  in  a  later  case,  in  which  it  was  held 
that  the  objection  that  the  witness  was  interested  in  a  civil 
action,  involving  a  similar  question,  went  only  to  the  credit  of 
the  witness,  and  not  to  his  competency,  unless  the  conviction 
in  the  prosecution  could  be  given  in  evidence  in  the  civil  ac- 
tion. (4)  And  on  the  trial  of  an  indictment  for  perjury,  where  a 
civil  action  and  a  suit  in  equity  were  pending  at  the  same  time 
between  the  prosecutor  and  the  defendant,  and  the  perjury  was 
alleged  to  have  been  committed  in  an  answer  put  in  by  the 
defendant,  in  the  suit  in  equity,  it  was  decided  that  the  pros- 
ecutor was  a  competent  witness  in  support  of  the  indictment, 
as  he  could  not  avail  himself  of  the  conviction  as  evidence  in 
his  favour,  in  any  civil  proceeding  between  them  at  law  or  in 
equity.  (5) 

(2)  R.  V.  Ellia,  2  Stra.  1104.  (4)  R.  «.  Broughton,  2  Str.  1229,  and 

(3)  R.  ».  Nunez,  2  Stra.  1043.  see  per  Lord  Mansfield,  4  Burr.  2255. 

(1)  R.  p.  Eden,  1  Esp.  N.  P.  C.  97.  (5)  R.  v.  Boston,  4  East,  472.     In  a 

(2)  R.  0.  Dalby,  1  Feake,  N.  P.  C.  rery  recent  case,  R.  «.  Hnlme,  7  Car. 
12.  See  also  R.  w.  Menetone,  cited  in  &  P.  8,  an  opinion  is  e:ipressed  by  Lord 
R.  0.  Palby,  and  4  East,  576.  Dcnman,   tliat  the   prosecutor  of  an  in- 

(3)  R.  u.  Bray,  Rep.  temp.  Ilurdw.  dictment  for  perjury,  who  stated  that  he 
358.  expected  the  defendant  would  be  a   wit- 


Sect.  2.]      Incompetency  of  Parties  to  the  Suit.  69 

*To  the  general  rule,  by  which  the  prosecutor  or  party  in-  fttreption 
jured  is  a  competent  witness  in  criminal  prosecutions,  on  the  existing 
ground  of  absence  of  interest,  an  exception  formerly  prevailed  "^^^'^^^^"^ 
in  the  case  of  an  indictment  for  forgery,  in  which  case  it  was    r  *(j5  j 
the  settled  doctrine,  that  the  party,  upon  whom    the  alleged 
forgery  had  been  committed,    was  incompetent  to   prove  the 
instrument  not  genuine,  although  it  was  clear,  that  he    could 
not  use  the  conviction  as  evidence  in  his  own  favour  in  a  civil 
suit   upon  the  forged  instrument.        This    doctrine   (which 
appears  to  have  originally  proceeded,  in  part,  upon  the   notion 
that  a  prosecution  for  forgery  was  a  species  of  proceeding  in 
rem,  and  that  a  conviction  warranted  a  judicial  cancellation  of 
instrument),    was  long  considered   as  an  anomaly  in    the  law 
of  evidence,  (1)  and  was  often  productive  of  great  inconveni- 
ence in  excluding  the  most  satisfactory  testimony  that  could 
be  given  in  trials  for  this  ofTence.       This   inconvenience  has 
been  removed  by  the  late  statute  of  the   9  Geo.  4,  c.  32,  s.  2,  stat.9G.4, 
whereby  it  is  enacted,    "  that  on  any  prosecution   by  indict-  *^" 
ment  or  information,    either  at  common  law  or  by  virtue  of 
any  statute  against  any  person  for  forging   any  deed,  writing, 
instrument,  or  other  matter  whatsoever :    or  for  uttering  or 
disposing  of  any  deed,   writing,   instrument,   or  other  matter  Party  ag- 
whatsoever,  knowing  the  same  to  be  forged:    or  for  being  ac-  forgery,'" 
cessary  before  or  after  the  fact  to    any  such  offence,    if  the  competent, 
same  be  a  felony,    or  for   aiding,  abetting  or  counselling  the 
commission  of  any  such  offence,  if  the  same  be  a  misdemean- 
or ;  no  person  shall  be  deemed  to  be  an   incompetent  witness 
in  support  of  any  such  prosecution,  by  reason  of  any  interest 
which  such  person  may  have,  or  be   supposed  to  have,  in  res- 

ness  against  him  in  an  action  that  would  an  adverse  witness.  In  both  cases  the 
shortly  come  on  to  be  tried,  was  incom-  party  would  be  indirectly  giving  evi- 
petent,  by  reason  of  the  interest  he  bad  dence  in  iiis  own  favour,  and  the  sub- 
in  getting  rid  of  the  defendant  as  a  wit-  stantial  result  would  be  the  same.  In- 
ncss,  by  convicting  him  of  perjury.  His  dejiendently  of  thi.<  objection,  the  inter- 
Lordship  received  the  witness,  in  order  ejit  is  of  an  uncertain  description,  consist- 
to  allow  an  opportunity  for  reviewing  ing  in  the  expectation  that  the  defend- 
his  decision.  It  maybe  observed,  how-  ant  would  be  a  witness  against  him  ;  and 
ever,  that  in  order  to  disqualify  the  wit-  the  edect  of  disqualifying  a  witness  on 
ness,  the  conviction  and  judgment  must  this  ground  would  not  be  confined  to 
be  produced  and  proved,  and  the  author-  perjury  alone,  but  would  equally  apply 
ities  above  cited  appear  to  shew,  that  to  all  trials  for  felony  and  misdemeanors 
the  record  would  not  be  admissible  evi-  producing  legal  infamy,  where  the  wit- 
dence  for  the  prosecutor,  if  he  had  ap-  ness  txptittd  the  defendant  would  give 
peared  as  a  witness  in  support  of  the  in-  evidence  against  him  on  a  subsequent 
dictmenl,  for    it  would    be  allowing  him  occasion. 

indirectly    to  give    evidence  in    his   own  (1)  See    per    Lord   Ellenborough,    4 

cause.     See  per   Lord    Ellenborough,  1  East,  .582.     i'er  Abbott.  C.    J.,  4  B.  & 

Campb.    11.     Per   Mansfield,  ().    .1.,    1  Aid.   210.     The    doctrine    was  confined 

Campb.  151.     It  is  clear  that  the  record  to  criminal  prosecutions,  and  did  not  ap- 

would  not  be  evidence  on  the  merits,  and  ply  where  the  question  of   forgery  arose 

using  it  for    the  purpose  of  shutting   out  in  a  civil  suit.     Hunter  v.  King,  4  B.  &. 

evidence  on  the  merits,  by  disqualifying  Aid.  209. 


60 


Incompetency  of  Paiics  to  the  /Suit. 


[Ch.  a 


Forgo  ry 
now  on 
same  fool- 
ing as  other 
cases,  (d) 

[*GG] 


Prosecnlor, 
or  parly  in- 
jured, 
sometimes 
incompe- 
tent from 
interest. 


Summary 
convic- 
tions. 


pect  of  such  deed,  writing,  instrument,  or  *othcr  matter."  The 
eliect  of  this  enactment  is,  to  ])lace  the  law  of  evidence  in  ca- 
ses of  forgery  upon  the  same  footing  as  in  other  criminal  pros- 
ecutions :  and  therefore,  the  party  aggrieved  by  an  alleged  for- 
gery, whether  he  be  the  prosecutor  or  not,  is  now  in  all  cases 
a  competent  witness  in  support  of  the  indictment. 

But,  although,  in  general,  a  prosecutor  or  party  aggrieved 
has  no  interest  in  the  event  of  a  prosecution,  and  is  therefore  a 
competent  witness,  there  arc  several  classes  of  cases,  is  which, 
by  virtue  of  some  legislative  enactment,  he  is  entitled  to  a 
particular  benefit  or  advantage  upon  obtaining  a  conviction  of 
the  party  accused.  In  these  cases,  where  the  benefit  or  advan- 
tage will  immediately  result  to  the  witness,  on  a  conviction 
being  obtained,  the  witness  will  be  interested,  and  he  will  be 
incompetent,  unless  the  general  rule  of  law  be  dispensed 
with  in  the  particular  case,  either  by  some  legislative  enact- 
ment, or  some  principle  of  public  policy,  requiring  that  his 
evidence  shall  be  received.  (1) 

Thus  in  cases  of  summary  convictions,  where  a  penalty  is 
imposed  by  statute,  and  the  whole  or  part  is  given  to  the  in- 
former, who  becomes  entitled  to  receive  it  immediately  upon 
the  conviction,  the  informer  is  an  incompetent  witness,  unless 
he  is  made  competent  by  statute.  (2) 


(1)  See  the  judgment  of  the  Conrt  of  K. 
B.  in  R.  V.  Williams,  9  B.  it  C.  545,  560, 

(2)  R,  V.  Tiriey,  1  Stra.  315.     R.    v. 


Stone,  3  Lord  Ravm.  1545.  R.  v. 
Piercy,  Andr.  18.  R.  v.  Blaney,  Andr. 
240, 


(a)  In  the  Comnionweallh  v.  Snell,  3  Mass.  82,  it  was  settled,  that  on  the  trial  of 
an  indictment  for  forging  a  note,  the  supposed  maker  of  the  note  was  a  competent 
witness  to  prove  the  note  to  be  a  forgery.  Parsons,  C.  J.  in  delivering  the  judg- 
ment of  the  court  observes — "That  in  England,  since  Lord  Chief  .Justice  Parker's 
time,  the  rule  (in  regard  to  interest  in  the  question)  had  been  altered,  and  no  wit- 
ness was  now  excluded  from  testimony  by  reason  of  any  supposed  interest,  unless 
he  was  interested  in  the  event  of  the  suit  ;  or  unless  the  verdict  in  the  cause,  which- 
ever way  it  may  be  found,  could  be  given  in  evidence  in  any  other  action,  in  which 
he  was  a  party  ;  that  in  England  the  party,  whose  name  is  said  to  be  forged,  can- 
not now  be  a  witness;  for  he  is  considered  as  interested,  because,  if  the  instrument 
is  found  by  the  verdict  to  be  a  forgery,  it  is  impounded  by  the  court,  so  that  it  can- 
not again  bo  used  as  evidence  in  an  action  against  him;  that  in  tliis  state  for  a  pe- 
riod of  30  years  at  least,  a  witness  has  been  considered  as  competent,  both  in  crim- 
inal and  civil  prosecutions,  unless  he  was  interested  in  the  event  o(  the  suit  ;  that 
in  the  present  case,  whether  the  defendant  was  acquitted  or  convicted.  Smith  (the 
witness)  might  be  sued  on  the  note  in  question  as  a  genuine  note,  and  the  verdict 
upon  this  indictment  could  not  be  given  in  evidence;  for  although  an  instrument 
found  by  verdict  to  be  forged  is  retained  on  the  files  of  the  court,  yet  any  person  in- 
terested may  have  a  copy,  by  which  to  form  his  writ,  and  a  duces  tecum  to  the 
clerk  to  bring  the  original  into  court  on  the  trial  ;  and  therefore  that  Smith  was 
properly  admitted  to  testify,  the  objection  against  him  going  only  to  his  credibility. 
See  also  1  Dall.  110;  2  id.  239;  2  N.  IL  R.  481.  In  Noble  v.  The  People,  1 
Breese,  R.  29.  the  person  whose  name  was  forged,  was  admitted  to  testify,  although 
he  would  be  entitled  to  part  of  the  fine  on  conviction. 

On  the  trial  of  an  indictment  for  forging  the  papers  of  a  vessel,  the  president  of 
the  insurance  company  was  admitted  as  a  witness.  1  Wash.  C.  C.  363.  See  6 
Coweu,  31. 


Sect.  2.]       Incompetency  of  Parties  to  the  Suit.  61 

And  upon  an  indictment  for  a  forcible  entry  upon  the  21  g,^j7'''''' 
Jac.  1,  c.  25,  or  the  8  H.  6,  c.  9,  where  the  effect  of  a  convic- 
tion is  to  entitle  the  tenant  to  an  immediate  award  of  restitu- 
tion of  the  lands,  such  tenant  is  incompetent  by  reason  of  his 
interest  in  the  event  of  the  indictment.  (3) 

There  are,  however,  many  cases  in  which  a  prosecutor  or  pj^ofj'c.uo^ 
party  grieved  is  entitled,    by  virtue  of  some  statute  or  other-  or  pany 
wise,  to  some  immediate  benefit,   upon  obtaining  the  convic-  fomefimes 
tion  of  the  *partv  indicted,  but  is  nevertheless  competent  to  competent, 
give  evidence  ui  support  oi   the  prosecution,  either  by  the  ex-  teresied. 
press  provisions,  or  necessary  implication  of  the  statute  con-  |^g/^f^;,3 
ferring  the  interest,  or  on  some  strong  ground  of  public  policy,    r  ^g-.  t 
Such  cases  are  to  be  viewed  as  exceptions  to  the  general  prin- 
ciple,   relative  to  the    incompetency  of  interested  witnesses, 
and  they  will  be    particularly  examined  hereafter  in  treating 
on  this  branch  of  the   subject  under  consideration.       One  ex-  ^^°j"_ 
ception  of  this  nature  occurs  in  the  cases  of  prosecutions  for  resiiiuiion. 
robbery  or   theft,    where  the  party  injured  is  competent  not- 
withstanding he  becomes  entitled  to  restitution  of  his  property, 
immediately  upon  obtaining  a  conviction  of  the  offender.(  l)(a) 

There  are  other  cases,  in  which  a  prosecutor  or  party  injur-  cove^rabie*' 
ed  by  an  offence  is  entitled  to  a  pecuniary  penalty  from   the  by  separate 
person  who  has  committed  the  offence,    but  such  penalty  is  ^''^'°"" 
not  recoverable  by  means  of  a  criminal  prosecution,  and  upon 
the  event  of  such  prosecution,  but  only  by  a  separate  civil  ac- 
tion.     In  these  cases  no  objection  arises  to  the  competency 
of  the  party  as  a  witness  in  a  criminal  prosecution,    because, 
as  we  have  already  seen,  if  he  appear  as  a  witness  in  support  of 
the  indictment,  the  conviction  could  not  be  used  as  evidence 
for  him  in  a   subsequent   civil  action  for  the  recovery  of  the 

(3)  R.  V.  Williams,  9  B.  &  C.  549.  (1)  See  3  Bing.  300,  301.  Per 
R.  V.  Beavan,  Ry.  &  Mo.  N.  P.  C.  Parke,  J.,  9  B.  &  C.  550,  and  per  Bay- 
242.  ley,  J.,  ib.  557,  and  infra. 


(a)  The  necessity  of  tlie  thing. — Where  by  statute  the  woman  is  made  a 
witness  in  cases  of  prosecution  for  the  maintenance  of  a  bastard  child ;  but  as  a  pre- 
requisite to  her  admission,  her  credit  must  be  fortified  by  her  having  charged  the 
defendant  in  her  travail;  and  she  must  have  continued  constant  in  her  accusation, 
or  at  least  it  must  not  appear  that  she  has  been  inconstant,  and  she  must  have  been 
examined  on  oath  before  a  justice  on  the  several  circumstances  of  her  complaint 
necessary  for  the  discovery  of  the  truth.  Although  directly  interested,  yet  if  her 
credibility  be  supported  by  these  facts,  she  may  be  sworn  as  a  witness,  but  the  ev- 
idence, introduced  to  entitle  her  to  be  sworn,  may  notwithstanding,  be  impeached 
by  the  defendant  before  the  jury.  As  in  an  action  upon  a  promissory  note,  the  sig- 
nature to  which  is  denied,  before  the  court  will  sufier  it  to  be  read  to  the  jury, 
there  must  first  be  some  evidence,  whence  the  jury  may  reasonably  presume  the 
signature.  The  note  may  then  be  road,  but  the  defendant  may  afterwards  iinpeach 
this  evidence  if  he  can.  Parsons,  C.  .f.  2  IVIass.  443.  The  complainant  is  not 
competent  to  testify  that  these  pre-requisites  have  been  cotnplied  with;  because, 
although  made  a  competent  witness  from  necessity,  yet  her  testimony  ought  not  to 
be  given  to  facts  equally  within  the  knowledge  of  other  persons,  who  are  disinteres- 
ted, id. 


62 


Incompetency  of  Parties  to  the  Suit.  [Ch.  6. 


[*6S] 


Perjiirv  on 
slat.  5  Cliz. 
C.9. 


Fine  or  im- 
prisoiinieiil. 


Defendant 
in  criminal 
prosecu- 
tions. 
Interested 
and  incom- 
petent. 


penalty.  Thus,  on  an  indictment  on  the  statute  9  Ann.  c.  14, 
s.  5,  for  fraudulent  gaming,  tlie  loser  of  the  money  is  compe- 
tent to  prove  the  loss ;  (2)  for  the  pecuniary  penalty  imposed 
by  the  statute  is  not  immediately  recoverable  upon  a  convic- 
tion being  obtained  on  the  indictment  ;  but  is  given  by  the 
express  words  of  the  statute  to  such  parties  as  shall  sue  for 
the  same  by  a  separate  action,  and  the  conviction  would  not 
be  admissible  evidence  in  an  action  by  the  party,  to  recover 
the  penalty.  (3)  So  in  a  prosecution  for  seducing  artificers, 
under  the  statute  23  Geo.  2,  c.  13,  s.  1,  which  subjects  offen- 
ders to  a  penalty  of  500/.,  the  prosecutor  is  a  competent  wit- 
ness ;  for  the  statute  impliedly  renders  a  separate  action  nec- 
essary, for  the  purpose  *of  obtaining  the  penalty.  (1)  Upon 
the  same  principle,  it  should  seem,  on  an  indictment  for  per- 
jury founded  on  the  statute  5  Eliz.  c.  9,  which  imposes  a  pe- 
cuniary penalty,  and  gives  half  to  the  party  grieved,  such 
party  would  be  a  competent  witness  ;  for  the  penalty  appears 
to  be  recoverable  not  by  means  of  an  indictment,  but  by  a 
separate  action,  and  the  party  grieved  could  not  use  the  con- 
viction as  evidence  in  such  action.  (2)  Cases  of  this  nature 
are  not,  therefore,  to  be  viewed  as  exceptions  to  the  rule  re- 
specting interested  witnesses  ;  for  in  none  of  them  has  the 
Avitness  any  real  interest  in  the  event  of  the  prosecution. 

Even  in  cases,  where  by  statute  a  pecuniary  penalty  may 
be  immediately  recoverable  upon  the  event  of  a  criminal  pros- 
ecution, and  where  the  prosecutor,  or  informer,  is  entitled  to 
part  of  the  amount,  it  has  been  held,  that  he  will  not  be  an  in- 
competent witness,  if  it  be  in  the  discretion  of  the  Court  to 
punish  the  offender  either  by  fine  or  imprisonment.  (3)  This 
is  on  the  ground  that  a  witness  will  not  be  incompetent  from 
interest,  unless  the  interest  be  certain  :  and  in  cases  where  a 
fine  is  made  to  depend  upon  the  discretion  of  the  Court,  it  is 
quite  uncertain,  until  the  judge  pronounces  his  sentence, 
whether  the  informer  will  derive  any  benefit  from  the  event 
of  the  prosecution.  It  may  be  observed,  however,  that  the 
witness  is  at  least  interested  to  the  extent  of  securing  the 
chance  of  a  pecuniary  benefit,  which  in  many  cases  may 
approximate  nearly  to  a  certainty. 

With  regard  to  the  competency  of  defendants  in  criminal 
prosecutions,  it  is  scarcely  necessary  to  observe,  that  as  they 
are  in  general  immediately  interested  in  the  event,  it  does  not 
often  happen  that  they  can  be  called  as  witnesses. 


(2)  R.  V.  Luckup,  Willes,  425,  (n) 

(3)  See  per  Cur.  9  B.  &  C.  557, 
55S. 

(1)  R.  V.  Johnson,  Willes,  425,  and 
9  B.  &  C.  557,  558. 

(2)  Sed  qu.  The  point  appears  to 
have  been  ruled  otherwise  in  an  old 
case.   Bacon's  case,  2d   vol.  Ab.   687, 


and  see  Bnl.  N.  P.  2S9.  Gilb.  Evid,in. 
The  question,  of  course,  depends  upon 
the  point,  whether  a  separate  action  is, 
or  is  not  necessary  for  the  recovery  of 
the  penalties.  Prosecutions  under  the 
statute  are  not  usual  at  the  present  day. 
(3)  R.  V.  Cole,  1  Esp.  169,  over- 
ruling R.  V.  Elackman,  1  Esp.  96. 


Sect.  2.]        Incompetency  of  Parties  to  the  Suit.  63 

But  as  we  have  seen,   that  in  civil  actions  against  several  Sometimes 
defendants,  *one  of  them  may  sometimes  be  so  circumstanced  come  com- 
as to  be  a  competent  witness ;    so  in   criminal  prosecutions,  ^f^^l:^ 
one  of  several  persons  jointly  indicted  may  sometimes  be  com-    <-         J 
petent  to  give  evidence  either  for  the  prosecution  or  for  his  co- 
defendants.     Thus,  upon  ail  information  by  the  crown  against 
two  or  more,  if  a  tiolle  prosequi  be  entered  by  the   attorney  Noiu  pros. 
general,  either  before  or  at  the  trial,   as  to  one  of  the  defend-  ^'^'"' 
ants,  such  defendant  may  be  called  as  a  witness  for  the  crown 
against  his  co-defendant.  (1)     So  where,  upon  a  joint  indict- 
ment against  two,  one  had  pleaded  in  abatement,  and  for  want  Plea  in  a- 
of  replication  judgment  had  been  entered  that  he  should  be  an^Tj^To'. 
dismissed  and  discharged,  he  was  admitted,  without  objection,  mem. 
as  a  competent  witness,  for  the  other  defendant,  being  himself 
no  longer  interested  in  the  event  of  the  prosecution.  (2) 

One  of  several  defendants  may  also  be  rendered  competent  separate 
in  some  cases,  by  a  separate  verdict  at  the  trial.  Thus,  where  *«fdict. 
several  persons  were  jointly  indicted  for  a  conspiracy,  Lord 
Tenterden  permitted  a  verdict  of  acquittal  to  be  taken  in  fa- 
vour of  two  defendants,  at  the  request  of  the  prosecutor's 
counsel,  before  the  case  was  opened,  in  order  that  they  might 
be  called  as  witnesses  against  the  others.  (3)  And  where,  up- 
on an  indictment  against  several,  it  appears  at  the  close  of  the 
case  for  the  prosecution,  that  there  is  no  evidence  against  one 
of  the  defendants,  he  is  entitled  to  a  separate  verdict  of  ac- 
quittal and  may  then  be  called  as  a  witness  on  behalf  of  the 
others.  (4)  This  is  upon  the  same  principle,  that  is  common- 
ly acted  upon  in  the  case  of  an  action  of  tort  against  several 
defendants,  where  no  evidence  is  adduced  against  one  or  more 
of  them.  It  has  also  been  decided,  that  upon  an  indictment 
against  two  defendants  for  an  assault,  one  of  them  who  had 
pleaded  guilty,  and  was  fined  and  paid  the  fine,  might  be  cal- 
led as  a  witness  on  behalf  of  the  other  defendant,  who  had 
pleaded  *not  guilty  ;  the  trial  being  at  an  end  with  respect  to  [  *70  J 
the  witness.  (1)  (a) 

(1)  Bui.  N.  P.  285.  Per  Lord  some  af  these  cases  have  been  already 
Ilardw.  Rep.  temp,  llardw.  1()3,  and  noticed  in  treating  of  the  ndiiiissibiiity  of 
nee  per  Lord  Hardwicke,  Ward  v.  Man,     accomplices. 

2  Atk.  229.  (4)  P^.    v.  IMutineers   of  the    Bounty, 

(2)  IJ.  V.  Shearman  and  others,  Rep.  cit.  1  East,  31.3.  R.  v.  Bedder,  1  Sid. 
temp.  Ilardw.  SOS.  237.     Hawk.  P.  C.  c.  46,  s.  98. 

(3)  R.    w.  Rowland  and  others,  Ry.         (1)  R.  t\  I'letcher,  1  Stra.  633. 
&  Mo.  N.  P.  C.  491.   See  ante,  where 

(a)  Tn  The  People  v.  Bill,  10  J.  R.  9.5,  a  co-defendant  in  a  criminal  prosecution 
was  tried  separately,  another  defendant  was  holden  incompetent,  oil  the  ground  of 
his  being  a  party  to  the  record. 

Where  two  were  indicted  for  a  forcible  entry  and  detainer,  the  court  refused  to 
permit  one  of  the  defendants  to  be  examined  as  a  witness,  although  it  appeared  that 
he  had  used  no  force.  Addis.  R.  352  fe'o,  on  the  trial  of  an  indictment  for  larceny, 
a  co-defendant  was  rejected,  although  no  evidence    appeared  against    him.  Coxe's 


64  Incompetcnvy  of  Parlies  to  the  ^uit.         [Ch.  6. 

Jucigmeni  j^  y^.  v.  Ldfoiie,  (2)  a  defendant,  who  had  suffered  judg- 
ment by  default  to  an  indictment  for  a  misdemeanor,  was 
tendered  as  a  witness  at  the  trial  on  behalf  of  another  defend- 
ant who  had  pleaded,  but  Lord  KUenborough  said,  he  had 
never  known  such  evidence  admitted,  and  he  rejected  the 
witness.  "  The  admission  of  such  evidence,"  said  his  Lord- 
ship, "  might  be  extended  to  every  other  criminal  case,  and 
thus  one  of  the  party  who  sulfers  judgment  by  default  may 
protect  the  rest  :  there  is  a  community  of  guilt,  they  are  all 
engaged  in  an  unlawful  proceeding,  the  ofience  is  the  offence 
of  all,  not  of  a  single  individual  only."  (3) 


[  *n  J  ^CHAPTER  VIL 

OF    THE    RULE    OF    INTEREST    WITH    REGARD    TO    PERSONS  NOT 
PARTIES    TO    THE    SUIT4 

• 

The  general  principle,  on  which  a  witness,  interested  in 
the  event  of  a  cause,  is  incompetent  to  give  evidence  in  sup- 
port of  such  interest,  has  already  been  stated,  and  we  have 
examined  into  the  application  of  this  rule,  with  regard  to  the 

(2)  5  Esp.  154.  consideration  of  the  jury.     It  is  not  easy 

(3)  No  authorities  appear  to  have  to  understand  the  concluding  observa- 
been  cited  in  this  case.  According  to  tions  attributed  to  Lord  EilenbOrough. 
Ihe  language  attributed  to  Lord  Ellen-  'J'lie  guilt  of  a  party  who  has  suffered 
borough,  the  incompetency  of  the  wit-  judgment  by  default  is  admitted  ;  but 
ness  is  not  placed  on  the  ground  of  his  the  guilt  or  innocence  of  a  party  who 
being  interested,  but  upon  the  supposed  has  pleaded,  remains  to  be  a;;certained 
impolicy  of  permitting  one  of  several  by  the  verdict  of  the  jury.  To  statCj 
persons  jointly  indicted  to  screen  the  therefore,  that  there  is  a  community  of 
others  at  his  own  expense.  This  appears  guilt,  and  that  the  ofl'ence  is  the  offence 
to  be  a  doctrine  at  variance  with  the  of  all,  is,  with  regard  to  the  defendant, 
cases  in  which  it  has  been  held,  that  a  who  has  pleaded,  to  assume  the  very 
defendant  in  an  action  of  tort,  who  has  question  which  the  jury  have  to  try: 
sufiered  judgment  by  default,  is  compe-  and,  with  regard  to  the  witness  himself, 
tent  to  exculpate  a  co-delendant  who  we  have  already  seen,  in  treating  of  the 
has  pleaded.  (Ward  v.  tieydon,  2  evidence  of  accomplices,  that  a  party 
Esp.  N.  P.  C.  553.  Per  Le  Blanc,.!.,  who  admits  himself  to  be  guilty  of  an 
2  Campb.  333,  n.)  It  is  also  to  be  ob-  offence  for  which  another  is  indicted,  is 
served,  that  even  assuming  it  to  be  pro-  a  competent  witness  for  the  prisoner  as 
bable,  that  one  of  several  parties  indict-  well  as  for  the  f)rosecution,  unless  he 
ed  would  be  often  desirous  of  protecting  has  been  rendered  incompetent  by  actu- 
the  rest  at  his  own  expense,  it  does  not  al  conviction  of  a  crime  producing  in- 
follow   that    he  would    be  successful  in  famy.  (a) 

doing  so  J  for  his  credit  would  be  for  the 

R.  L  Defendants  jointly  sued  or  indicted   cannot  be  witness    for,   or  against   each 
other,  until  discharged  from  the  suit,  or  prosecution.   1  Yerg.  R.  43L 

In  Commonwealth  v.  Marsh,  10  Pick.  57,  on  a  trial  for  forgery,  one  of  the  de- 
fendants was  tried  and  convicted;  the  other  joint  defendant  whose  case  had  been 
postponed  was  ort'ered  as  a  witness  and  rejected. 

(a)  If  the  parties  charged  with  an  offence,  were  permitted  to  testify  for  each  other, 
they  might  escape  punishment  by  perjury.  See  the  Observations  of  Wilde,  J.  10 
Pick.  57. 


Ch.  7.]  Of  the  Rale  of  Inter  est,  ^'c.  65 

persons  who  are,  in  general,  most  obviously  and  immediately 
interested  in  the  event  of  a  suit,  viz.  the  parties  to  the  record. 
We  have  now  to  consider  the  application  of  the  rule  with  re- 
gard to  ordinary  witnesses. 

This  inquiry  will  be  found  of  a  more  extensive  and  compli- 
cated description  than  that  which  has  just  been  completed, 
and  it  is  scarcely  possible  to  reconcile  the  earlier  cases  on  the 
subject  with  those  of  more  recent  date.  The  earlier  cases 
were  generally  decided  on  very  narrow  grounds.  "  The  old 
cases  on  the  competency  of  witnesses,"  said  Lord  Mansfield, 
*•  have  gone  upon  very  subtle  grounds  :  but,  of  late  years,  the 
courts  have  endeavoured,  as  far  as  possible,  consistently  with 
those  authorities,  to  let  the  objection  go  to  the  credit  rather 
than  the  competency  of  the  witness."  (1) 

The  general  rule  is  laid  down  by  Gilbert,  C.  B.,  in  these  General 
words,  '•  The  law  looks  upon  a  witness  as  interested,  where  ^"'®' 
there  is  a  certain  benefit  or  disadvantage  attending  the  con- 
sequence of  the  cause  one  way."  (2)  (a)  And  Mr.  Justice 
Buller,  in  the  case  of  the  King  v.  Frosser,  says,  "  I  take  the 
rule  to  be  this,  if  the  Avitness  can  derive  no  benefit  from  the 
cause  before  the  court,  he  is  competent."  (3) 

*In  inquiring  into  the  competency  of  the  parties  to  the  rec-  D'^ectin- 
ord  in  civil  suits,  it  has  been  seen,  that  in  general  they  are  in- 
competent to  give  evidence,  by  reason  of  a  direct  interest  in  [  *72  ] 
the  event  of  the  suit.  Many  cases  arise,  in  which  persons 
not  being  parties  to  the  record  are  open  to  same  objection. 
Thus,  the  nominal  plaintiff  on  the  record  may  sometimes 
have  no  real  interest  in  the  question  at  issue,  and  the  action 
may  be  prosecuted  solely  for  the  benefit  of  a  third  person  who 
is  not  a  party  to  the  record :  and  if  at  the  trial  such  person 
were  tendered  as  a  witness  in  support  of  the  plaintiff's  case,  he 
would  be  obviously  incompetent,  by  reason  of  the  direct  in- 
terest which  he  would  have  in  obtaining  a  verdict  for  the 
plaintiff ;  for  such  verdict,  when  obtained,  would  enure  to 
his  own  benefit,  and  the  witness  therefore  would  have  a  much 
stronger  interest  than  the  plaintiff  himself,  in  obtaining  a  fa- 
vourable termination  of  the  cause.  The  same  principle  would 
of  course  be  equally  applicable  with  regard  to  the  defendant, 
as  with  regard  to  the  plaintiff.     And  it  would  hold  equally  in 

(1)  IT.  R.  300.  Walton  v.  Shellev,         (2)  Gilb.  Evid.   196-7. 
cit,  per  Lord  Kenyon,  3  T.    R.  32,  and         (3)  4    T.  R.  20,   and   see  B.    N.   P. 
see  R.  V.  Uray,  Ca.  temp.  Hardvv.  360.       284. 

(a)  It  is  not  the  aaiount  of  interest,  which  determines  the  question  of  compe- 
tency;  any  direct  interest,  iiovvever  small,  renders  the  witness  incompetent.  Per 
Weston,  J.  2  (ireenl.  199.  It  must  be  a  present,  certain,  vested  interest,  5  Wend. 
55.  An  intereet  in  part  only  of  a  demand,  be  it  ever  so  small,  will  disqualify  a 
witness;  4  J.  R.  293.  But  the  interest  to  exclude  must  be  iu  the  eveut  of  the  suit. 
13  Mass.  61;  id.  199. 


66  Of  Uie  Kale  of  InUrcsl.  to  [Cli.  7. 

the  case  of  rt  iiartial,  as  well  as  an  entiic  interest  in  the  snl)- 
ject  matter  of  the  action.  In  all  such  cases  there  wonld  he  a 
certain  henefit  or  disadvantage  tUrectly  rcsnUiiig  to  the  witness 
from  a  favourable  or  nnfavourahle  verdict,  and  he  would  there- 
fore be  incompetent  to  give  evidence,  by  reason  of  this  direct 
interest  in  the  event  of  the  suit. 
2.  Indirect  But  a   dircct  and  inuncdiate  Ijcncfit  or  disadvantage  from 

interest.  ^^^^  rcsult  of  the  suit  was  not  the  only  species  of  interest, 
which  at  one  time  rendered  a  witness,  not  a  party  to  the  rec- 
ord, incompetent  to  give  evidence.  For  until  the  passing  of 
a  recent  statute,  wliich  has  effected  a  material  alteration  in 
the  law,  in  this  resjiect,  and  the  provisions  of  which  will  be 
fully  stated  hereafter,  (1)  witnesses  who  were  neither  parties 
to  the  record,  nor  had  any  direct  interest  in  the  event  of  the 
suit,  were  often  rendered  incompetent,  by  reason  of  an  indi- 
rect interest  in  the  record,  with  regard  to  some  subsequent 
suit.  This  description  of  interest  has  already  been  adverted 
to,  in  treating  of  the  competency  of  the  prosecutor,  or  party 
grieved,  to  give  evidence  in  a  criminal  prosecution ;  and  it 
(  *73  ]  has  been  seen  *that  an  objection  to  his  competency  was  for- 
merly supposed  to  exist,  on  the  ground  that  he  might  be  able 
to  avail  himself  of  the  record  of  a  conviction  as  evidence,  in 
support  of  his  own  interest,  in  some  subsequent  civil  suit. 
But  when  it  became  a  settled  rule,  that  a  judgment  in  a  crim- 
inal prosecution,  could  in  no  case  be  used  as  evidence  in  a 
subsequent  civil  suit,  on  behalf  of  a  party  who  had  been  a 
witness  for  the  prosecution,  the  foundation  of  this  objection 
failed,  and  the  prosecutor  or  party  grieved  was  held  not  to  be 
disqualified  by  reason  of  this  supposed  indirect  interest  in  the 
record.  In  like  manner,  with  regard  to  the  parties  to  civil 
suits,  it  will  be  found,  upon  an  examination  of  the  cases  that 
have  been  decided  with  respect  to  their  competency  to  appear 
as  witnesses,  that  they  are  generally  disqualified,  by  reason 
of  a  direct  and  immediate  interest  in  the  event  of  the  suit,  and 
that  when  they  are  free  from  this  direct  interest,  no  objection 
can  be  raised  to  their  competency  on  the  ground  of  such  an 
indirect  interest  in  the  record.  But  with  respect  to  ordinary 
witnesses  the  case  was  often  different,  and  they  were,  in  ma- 
ny instances,  open  to  the  objection  of  an  indirect  interest,  in 
cases  where  they  could  derive  no  immediate  benefit  or  disad- 
vantage from  the  termination  of  the  particular  suit. 

In  treating,  in  a  subsequent  part  of  the  volume,  upon  the 
admissibility  and  effect  of  former  judgments  as  evidence  in  a 
subsequent  suit,  it  will  be  seen,  that  they  are  in  general  con- 
clusive evidence  of  the  facts  that  appear  to  have  been  decided 
by  the  record,  if  the  same  question  should  arise  again  between 
the  same  parties ;  ( 1)  but  that  they  are  not,  in  general,  admis- 

(l)  Stat.  3  &  4  W.  3,  c    42,  s.  26,  27.  (1)  Post,  Part  ii. 


Cli.  7.]  Persons  not  Parties  to  tlte  Suit.  67- 

sible  evidence  in  a  subsequent  suit  by  or  against  a  party  who 
was  a  stranger  to  the  former  proceedings.  To  the  latter  branch 
of  the  rule  there  are,  however,  some  exceptions,  and  a  judg- 
ment in  a  civil  suit  may  in  several  cases  be  admissible  in  evi- 
dence for  or  against  a  person  who  was  not  a  party  to  the  for- 
mer suit.  Thus,  if  an  action  be  brought  by  or  against  one  of 
several  persons,  who  claim  a  customary  right  of  common,  or 
some  other  *species  of  customary  right,  and  the  question  of  r  #74  j 
the  existence  and  validity  of  the  custom  is  determined  by  the 
record,  the  judgment  obtained  in  the  action  would  be  admis- 
sible evidence  in  a  subsequent  action,  for  or  against  a  person 
claiming  under  the  same  general  customary  right,  although 
he  was  a  stranger  to  the  record  in  the  former  action  :  and  if  a 
person  so  situated  were  tendered  as  a  witness  in  the  first  ac- 
tion, it  was  fully  established  that  the  circumstance,  of  the 
record  being  admissible  evidence  for  or  against  his  own  claims 
\i\  a  subsequent  suit,  was  an  interest  which,  in  general,  would 
render  him  an  incompetent  witness.  ( 1 ) 

There  were  therefore  two  distinct  modes,  in  which  a  per-  T'*'°  '*'*" 
son,  not  a  party  to  the  record,    might  derive  a  benefit  or  ad-  grounds  of 
vantaa:e  from  the  event  of  the  suit,  and  in  either  case  he  be-  "»compe- 
came  incompetent  to  give  evidence.       "This  benefit,"   says  1.  Direct. 
Lord  C.  J.  Tindal,  in  a  late  case,  (after  citing  the  general  rule  2.  indirect, 
in  the  words  of  C.  B.  Gilbert,  already  quoted  in  the  text)  (2) 
"  this    benefit  may   arise  to  the   witness  in  two  cases :    first, 
where  he  has  a  direct  and  immediate  benefit  from   the  event 
of  the  suit  itself;  and  secondly,  when  he  may  avail   himself 
of  the  benefit  of  the  verdict  in  support  of  his  own  claims  in  a 
future  action.  (3) 

These  were  the  only  grounds,  upon  which  a  witness  be- 
came incompetent  from  interest,  and  it  was  fully  settled,  by 
many  decisions,  that  all  other  objections  on  the  ground  of  a 
supposed  interest  would  afiect  the  credit  of  the  witness  only, 
not  his  competency.  This  was  the  rule  laid  down  and  acted 
on  in  Rent  v.  Baker ^  (4)  which  has  always  been  considered 
a  leading  authority  on  this  subject.  And  in  a  subsequent 
case.  Lord  Kenyon,  referring  to  the  rule  established  in  Bent 
V.  Baker  J  says,  "  That  case  laid  down  a  clear  and  certain 
rale,  by  which  I  have  ever  since  endeavoured  *to  regulate  [  *75  ] 
my  opinion .  The  rule  there  laid  down  was,  that  no  objec- 
tion could  be  made  to  the  competency  of  a  witness  on  the 
ground  of  interest,   unless  he  were  directly  interested  in  the 

(1)  Sec  1  T.    R.  302.     3  T.    R.  32.  evidence   can  reasonably  be  expected. 

v..    N.  P.    283.     Hockley  v.    Lamb,  1  See    Lancuiri  v.    Lovell,    9    Bing.  470. 

Lord  Raym.  731.      Anscomb  v.    Shore,  B.  N.  V.  289. 
1     Taunt,     261.       Lord    Falmouth    v.         (2)   Supra,  p.  71. 
George,  5  I5ing  286.     The  rule  had  au         (3)  €  Bing.  394.     Doe  v.  Tyler, 
exception  where  all    the  subjects  of  the         (4)  3  T.  R.  27. 
king  are  interested,  and  wliere  no   other 


6S  Of  the  Rule  of  Interest  to  [Ch.  7- 

event  of  the  suit,  or  could  avail  himself  of  the  verdict  in  the 
cause,  so  as  to  give  it  in  evidence   on  any  future    occasion  in 
supi)ort  of  his  own  interest."  (1)    So  also  Lord  Ellenborough, 
in  giving  judgment  in  a  case   which  has  been  cited  in  the 
preceding  chapter,  (2)  recognises  the  authority  of  Bent  v.  Ba- 
ker and  Smith  v.  Pi-ager,   and  observes,   that  the  rule  was 
well  laid  down  and  established  in  those  cases,  "  That   where 
a  party  is  not  immediately  interested   in  the   cause,  nor  has 
any  interest  in  the   event,  in  support  of  which  the  verdict  in 
that  cause  may  be  given   in  evidence   by  him  in  any  other 
proceeding   instituted    by   or  against  him,  he  is  a  competent 
witness." 
Stat.  3&4      A  material  alteration   has  lately  been  effected  in  the  Law 
w.  4,c.  42.  Qf  Evidence,  with  regard  to  the    incompetency  of  witnesses, 
oiiawasto  on  the  ground  of  an  indirect  interest  arising  from  the  subse- 
indireci  in-  queut  usc  of  tlio  rccord  as  evidence  for  or  against  the  witness. 

leresl 

For  by  the  stat.  3  &  4  W.  4,  c.  42,  s.  26,  (3)  it  is  provided, 
that  in  cases  where  witnesses  are  objected  to  upon  this  ground,, 
they  shall  nevertheless  be  examined,  but  that  in  such  case  a 
verdict  or  judgment  by  or  against  the  party  for  whom  the 
witness  shall  be  examined,  shall  not  be  admissible  in  evidence 
by  or  against  the  witness,  or  any  person  claiming  under  him. 
The  effect  of  this  enactment  is  to  remove  the  objection  to  the 
competency  of  the  witness,  by  removing  the  interest  out  of 
which  the  objection  arises.  And  the  principle,  upon  which 
the  statute  is  founded,  appears  to  be  in  some  degree  analogous 
to  that  of  the  rule  to  which  we  have  adverted  in  the  prece- 
ding chapter,  namely,  that  a  witness  in  a  criminal  prosecution 
shall  in  no  case  be  allowed  to  avail  himself  of  a  conviction, 
where  he  has  himself  been  called  as  a  witness  in  support  of 
the  indictment.  In  both  cases  the  supposed  interest  is  re- 
moved by  the  fact  of  the  party  appearing  in  the  character  of 
[  *76  ]  a  witness,  and  as  he  can  himself  *derive  no  benefit,  either  di- 
rectly or  indirectly,  from  a  favourable  termination  of  the  suit,. 
no  substantial  objection  to  his  competency  on  the  grounds  of 
interest  can  nov/  be  made. 

The  particular  provisions  of  this  statute,  and  the  cases  that 
have  been  decided  upon  it,  will  be  subsequently  stated.  It  is 
sufficient  to  observe  at  present,  that  the  effect  of  it  appears  to 
be  to  remove  one  of  the  grounds  of  incompetency  from  inter- 
est which  existed  before  the  passing  of  the  act ;  and  to  render 
all  witnesses  competent,  as  far  as  regards  objections  from  in- 
terest, unless  it  can  be  shewn  that  they  have  a  direct  interest 
in  the  event  of  the  particular  suit. 

In  pursuing  the  inquiry  into  the  present  state  of  the  law 
with  respect  to  the  incompetency  of  witnesses  from  interest^ 

(1)  7  T.  R.  62.     Smith  r.  Frager.  (3)  See  the  statate  ia  the  appendix. 

(2)  R.  V.  Boston,  4  East,  oSl,. supra. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  09 

it  is  proposed  to  shew,  in  the  first  place,  in  what  cases  a  wit- 
ness will  be  disquahfied  ;  and  secondly,  in  what  cases  he  will 
not  be  disqualified  from  this  cause  ;  The  first  of  these  sub- 
jects of  inquiry,  will  occupy  the  remainder  of  the  present 
chapter  ;  the  next  chapter  will  be  devoted  to  the  second. 

1.    What  is  such  an  interest  as  will  disqualify. 

The  two  distinct  species  of  interest  that  produced  disquali-  Practice  be- 
fication  before  the  statute  3  &  4  W.  4,  c.  42,  have  been  men-  J°a^u'ie^ 
tioned,  and  it  may  contribute  to  the  elucidation  of  the  subject 
of  the  present  inquiry,  if,  before  the  particular  cases  are  stated 
in  which  a  witness  becomes  incompetent  according  to  the 
present  state  of  the  law,  a  short  notice  is  taken  of  the  practice 
antecedent  to  the  passing  of  the  late  statute.  An  instance  of 
disqualification  from  an  immediate  interest  in  the  event  of  the 
particular  suit  frequently  arose,  in  cases  where  an  action  had 
been  brought  by  or  against  a  person  having  no  beneficial  in- 
terest in  the  subject  matter  of  the  action,  who  either  sued  or 
defended  merely  for  the  benefit  of  a  third  person,  and  on  the 
trial  of  the  cause  such  third  person  was  tendered  as  a  witness 
for  the  party,  who  was  a  mere  trustee  on  his  behalf.  In  ca- 
ses of  this  nature,  the  witness  would  derive  an  immediate 
benefit  from  a  verdict  in  favour  of  the  party  for  whom  he  was 
tendered  as  a  witness,  and  would  be  incompetent,  by  *reason  [  *77  ] 
of  this  obvious  and  direct  interest  in  the  event  of  the  particu- 
lar suit.  (1)  Examples  of  the  more  remote  species  of  inter- 
est, depending  upon  the  use  of  the  record  as  evidence,  often 
arose,  as  we  have  observed,  in  the  case  of  actions,  in  which 
questions  came  in  issue  concernmg  the  existence  and  legality 
of  some  general  custom  set  up  by  one  of  the  parties  to  the 
suit,  and  which  custom  affected  the  rights  of  other  persons 
tendered  as  witnesses  to  prove  the  custom.  Thus,  if  the  is- 
sue were  on  a  right  of  common,  which  depended  on  a  custom 
pervading  a  whole  manor,  a  person  claiming  a  right  under 
this  custom  was  incompetent  to  give  evidence  on  behalf  of  the 
party  to  the  particular  suit,  who  relied  on  the  existence  of  the 
custom ;  for  although,  in  this  case,  the  witness  would  gain 
no  immediate  benefit  from  the  termination  of  the  particular 
suit,  the  record  in  that  suit  would  be  evidence  in  a  subsequent 
action  by  or  against  the  witness  for  the  trial  of  the  same 
right.  (2)  So  also  in  an  action,  in  which  an  issue  arose  con- 
cerning the  existence  of  a  custom  to  take  a  certain  toll  from 
fishermen  frequenting  a  particular  cove,  it  was  decided,  that  a 
fisherman  who  was  not  a  party   to  the  action,    but  who   frc- 

(1)  See  other  instances  of  immediate         (2)  See  per  Duller,  J.,  1  T.  R.  302. 
interest  given  by  'I'indal,  C.  J.,  in  Doe 
».  Tyler,  6  Bing.  1^94. 


70  Of  the  Rule  of  Interest  to  [Ch.  7. 

qiiented  the  same  cove,  and  would  have  been  liable  to  pay 
toll  under  the  custom,  was  an  incompetent  witness  for  the 
purpose  of  disproving  the  existence  of  the  custom  ;  for  here 
alsO;  although  no  immediate  gain  or  loss  could  result  to  the 
witness  from  the  immediate  event  of  the  particular  suit,  yet  if 
a  subsequent  action  were  brought  against  himself  for  not  pay- 
ing toll,  the  record  of  the  verdict  in  the  former  action  would 
be  evidence  for  or  against  the  witness  in  the  subsequent  ac- 
tion. (3) 

Such  was  the  general  state  of  the  law  before  the  passing  of 
the  statute  3  &  4  W.  4,  c.  42,  s.  26,  27,  the  effect  of  which 
has  been,  to  remove  the  more  remote  species  of  disqualifica- 
tion, and  to  reduce  all  questions  on  the  incompetency  of  wit- 
nesses, as  being  interested  to  the  in(piiry,  whether  or  not  the 
f  *78  J  witness  has  any  direct  interest  in  the  event  of  the  ^particular 
suit.  It  is,  however,  important  to  observe,  that,  before  the 
passing  of  this  statute,  it  happened  not  unfrequently  that  wit- 
nesses were  so  situated  as  to  be  open  to  objection,  on  the 
ground  of  an  immediate  interest  in  the  result  of  the  particu- 
lar suit,  and  also  on  the  ground  of  an  indirect  interest  in  the 
record  for  the  purposes  of  the  evidence  in  some  subsequent 
suit.  And  as  either  objection  was  sufficient  to  produce  dis- 
qualification, such  witnesses  were  rejected  sometimes  on  one 
ground,  and  sometimes  on  the  other  indiscriminately,  accord- 
ing as  either  objection  might  be  presented  to  the  Courts. 
Thus,  it  has  been  decided  in  several  cases,  that  a  tenant  in 
possession  is  an  incompetent  witness  for  the  defendant,  and 
ins  incompetency  has  been  sometimes  attributed  to  an  imme- 
diate interest  in  the  event  of  the  particular  suit,  and  at  other 
times  to  an  indirect  interest  in  the  record,  as  available  for  the 
purposes  of  evidence.  In  the  case  of  Doe  v.  Wilde,  (1)  for 
instance,  it  was  said  by  the  Court,  that  the  effect  of  a  judg- 
ment for  the  plaintiff  would  be  to  turn  the  witness  out  of  pos- 
session, and  that  this  was  an  immediate  interest  which  dis- 
qualified the  witness  from  giving  evidence  for  the  defendant. 
But  in  other  cases  a  tenant  in  possession,  who  had  been 
served  with  a  copy  of  the  declaration,  has  been  held  an  in- 
competent witness  for  the  defendant,  upon  the  ground,  that 
a  judgment  for  the  plaintiff  in  ejectment  would  be  evidence 
against  the  witness  in  a  subsequent  action  brought  against 
him  for  the  mesne  profits.  (2) 

In  cases  of  the  above  description  (and  many  similar  instan- 
ces might  be  given),  the  witness  was  open  to  both  objections 
before  the  late  statute,  and  it  was  then  immaterial  to  examine 

(3)    Lord    Falmouth    v.    George,   5  B.  &  Aid.  672. 
Bin^.  286.  (2)    Bourne  v.  Turner,    1  Stra.   632, 

(1)  5  Taunt.  183.  See  also  per  Cur.  Doe  jj.  Williams,  Cowp.  621.     Doe   v. 

6  Bing.    304  ;  and   Doe  v.  Bingham,  4  Preece,  1  Tyrwh.  410. 


CIi.  7. J  Persons  not  Parties  lo  fhc  Suit.  71 

minutely  into  the  exact  nature  and  extent  of  his  interest ; 
because,  if  it  appeared  clearly,  that  he  was  interested  in  eith- 
er point  of  view,  that  was  a  sufficient  reason  for  rejecting  his 
testimony.  If  the  witness  had  a  direct  and  immediate  inter- 
est, there  was  no  occasion  to  have  recourse  to  a  second  prin- 
ciple, where  the  interest  was  *one  degree  removed.  (3)  And  L  '  ^  J 
so  on  the  other  hand,  if  it  was  apparent,  that  the  verdict 
wonld  be  evidence  for  or  against  the  witness  in  a  subsequent 
action,  there  was  no  occasion  to  consider,  whether  or  not  he 
had  any  more  immediate  interest  in  the  event  of  the  par- 
ticular suit.  But,  since  the  statute,  it  has  obviously  become 
necessary  to  consider,  in  all  cases  of  this  nature,  whether  the 
witness  has  a  direct  and  immediate  interest  in  the  event  of 
the  suit.  For  if,  before  the  statute,  the  objection  of  an  indi- 
rect interest  in  the  record  was  the  only  objection  that  could 
be  raised  against  the  admissibility  of  any  particular  witness, 
the  competency  of  such  witness  will  be  now  restored  through 
the  effect  of  the  statute  which  removes  this  indirect  interest. 
But  if,  before  the  statute,  the  witness  was  open  to  the  objec- 
tion of  a  direct  interest  in  the  particular  suit,  as  well  as  that 
of  an  indirect  interest  in  the  record,  the  statute  appears  to 
have  no  effect  in  restoring  his  competency,  for  although  it 
removes  the  latter  species  of  interest,  the  former  still  remains 
behind,  and  will  consequently  produce  disqualification. 

We  shall  now  proceed  to  shew,  in  what  particular  cases  per- 
sons, not  being  parties  to  the  suit,  are  according  to  the  exist- 
ing law,  incompetent  from  a  direct  interest  in  the  event  of  a 
suit. 

The  cases  that  have    arisen   respecting   the  competency  of  immediate 

.  interest     ■- 

the  parties  to  the  suit,   have  already  been  considered  ;    and  it  cases. ' 
has  been  seen,  that  the  plaintiff  and  defendant  are,  in  most  ca-        . 
ses,  disqualified  on  the  ground  of  interest,  and  that  where  they  pa°riv."* 
have  no  beneficial  interest  in  the  subject  matter  of  the  action, 
they  are,  in  general,  disqualified  on  the  ground  of  liability  to 
costs. 

The  bail  for  the  defendant  are  incompetent  witnesses  for  him,  Bail, 
being  directly  interested  in  the  event  of  the  suit;  for  if   the 
verdict  be  given  against  the  principal,   the  bail  become  imme- 
diately  answerable,  and  they  are  immediately  relieved  *from    r  *go  1 
this  liability  by  the  effect  of  a  verdict  in  his  favour.     (1)  (a) 
i  Jpon  the  same  principle,   a  person  who  has  deposited  in  the 

(3;  See  per  Tindal,  C.  J.,  6  Bing.  (1)  See  1  T.  R.  164,  per  Buller,  J. 
494.  Piesley  v.  Von  Esch,  2  Esp.  905. 

(a)  Owens  v.  CoUinson,  3  G.  &  J.  33;  Milterv.  Frazier,  3  Walts,  456;  Terry 
V.  Belcher,  1  Bail.  R.  r^dH.  In  2  Starlc.  Ev.  786,  it  is  laid  down  as  text  law,  that 
"  where  a  surety  would  be  immediately  liable,  in  case  of  a  decision  against  the 
principal,  his  interest  is  obvious,  and  therefore,  a  bail  is  incompetent  in  an  action 
against  his  principal." 


Bail  made 
coiii|)cleiit 


72  Of  the  Rule  of  Interest  to  [Ch.  7. 

hands  ol"  tlic  shcrill',  in  lieu  of  bail,  a  sum  of  money,  which 
by  rule  of  Court  is  made  to  abide  the  event  of  the  suit,  is  not 
Hnsi>an(i  competent  for  the  defendant.  (2)  Whenever  the  hus- 
— liaii'.*^  band  of  a  witness  would  be  incompetent  to  give  evidence 
on  account  of  his  interest  in  the  cause,  it  necessarily  follows 
that  the  wife  will  also  be  exchided,  having  an  unity  of  inter- 
est with  her  husband  ;  and  the  wife  of  the  bail  is,  therefore, 
iucomi)etent  to  give  evidence  for  the  party,  on  whose  behalf 
her  husband  has  become  bound.  (3)  (rt) 

When  a  material  witness  for  the  defendant  has  become  a 
bail  for  him,  the  court  will,  on  application,  allow  his  name  to 
be  struck  out,  on  the  defendant  adding  and  justifying  another 
bail  instead  of  the  witness.  (4)  {h)  And  even  at  the  trial  the 
judge  will  allow  the  witness's  name  to  be  struck  out  of  the 
bail  piece, if  the  defendant  deposit  with  the  associate,a  sufficient 
sum,  as  a  security  for  the  debt  and  costs.  (5)  (c)  Of  course, 
immediately  the  name  of  the  bail  has  been  struck  out  of  the 
bail  piece  by  competent  authority,  his  liability  ceases,  and  his 
interest  is  therefore  removed  ;  but  his  incompetency  will  con- 
tinue, where  it  does  not  distinctly  appear  that  his  liability  has 
terminated.  Thus,  where  a  witness  stated  on  the  voire  dire 
that  he  was  bail  to  the  sheriif  in  the  action,  and  that  he  did 
not  justify,  but  that  he  had  not  done  any  thing  to  get  discharg- 
ed from  the  liability,  which  he  had  contracted  by  becoming 
bail;  he  was  rejected  as  an  imcompetent  witness.  (6)  And 
where  an  attachment  had  been  granted  against  the  sheriff  for 

(2)  Lacon  v.  Higgins,  3  Stark.  N.  P.  former  of  these  cases,  the  sum  deposited 
C.  182.  was  the  amount  sworn  to,    together  with 

(3)  Cornish  v.  Pugh,  8  D.  &  R.  65.         a  further     sum   to   cover  the   costs  ;  in 

(4)  Whalley  v.  Fearnley,  2  Chit,  the  latter  case  double  the  sum  sworn  to 
Rep.  103.  Tidd's  Pr.  (9th  Edit)  259.         was  deposited. 

(5)  Bailiie  v.  Hole,  Mo.  &;  Ma.    N.         (6)  liawluns  v.  Inwood,  4  Car.  &  P. 
P.  C.  289.     3  C.  &  P.    560.     Pearcey     148. 
V.  Flemming,    5  C.  &  P.  503.     In   the 

(a)  The  rule,  which  excludes  the  wife  from  giving  evidence  for,  or  against  the  hus- 
band, is  founded,  in  some  degree,  upon  the  legal  identity  of  the  husband  and  wife. 
Per  Johnson,  J.  2  Bail.  R.  575.     See  Leggett  v.  Boyd,  3  Wend.  376. 

(b)  See  Kimmel  v.  Schwartz,  1  Breese,  218.  In  Irwin  v.  Caryall,  8  J.  R.  407, 
the  justice  refused  to  take  other  security  in  order  to  restore  the  competency  of  bail 
to  testify;  but  the  supreme  court  reversed  the  judgment  for  that  cause.  See  also  3 
Wend.  376. 

(c)  A  person  who  had  given  his  receipt  for  the  property  attached  upon  the  original 
process,  was  restored  by  placing  in  his  hands  an  amount  of  money  equal  to  the 
whole  amount  for  which  he  could,  by  possibility,  be  liable  on  his  receipt.  Allen  v. 
Hawks,  18  Pick.  79.  Such  an  appropriation  of  money,  does  not  like  a  release, 
extinguish  the  interest;  but  the  object  of  the  release  is,  to  exempt  the  mind  of  the 
witness  from  the  bias  arising  from  pecuniary  interest.  "  All  other  interests  are 
overlooked.  The  member  of  a  corporation,  who,  perhaps,  has  been  the  most  effi- 
cient agent  in  conducting  the  controversy,  out  of  which  the  suit  with  the  corpora- 
tion has  arisen,  is  yet  made  competent  by  the  transfer  of  his  stock,  or  other  dis- 
franchisement, at  the  moment  of  the  trial,  because  at  the  time  of  testifying,  he  has 
no  pecuniary  interest."  id.  See  Manchciter  Co .  v.  Sweeting  10  Wend.  162  to  the 
same  point. 


i;ii.  7. J  Persons  not  Parties  to  the  Suit.  73 

not  putting   in  bail,  but   which  was  afterwards  set  aside  on 
terms,  one  of  *which  was,   that  the  attachment  should  stand    [  *81  j 
as  a  security,  the  bail  to  the  sherilf  were  ruled  to  be  incompe- 
tent witnesses  for  the  defendant.  (1) 

A  surety  in  a  replevin  bond  is    interested  in   procuring  a  Surety  in 
verdict  for  the  plaintiff,  in  the  same  manner  as  bail  are  interes-  bond.^'" 
ted  in  procuring  a  verdict  for  the  defendant,  and  is,  therefore, 
incompetent ;  but  if  his  testimony  be  required,  the  courts  will 
permit  the  substitution   of  a  new  surety  in  lieu  of  the  witness 
in  order  that  the  latter  may  be  rendered  competent.  (2)  (a) 

In  the  cases  which  have   just    been  stated,  respecting  the  Persons 
incompetency  of  bail  and  sureties,   the  situation  of  the   wit-  "les'lo'^pi-o- 
ness  was  tha,t  of  a  party  immediately  connected  with  the  pro-  ceedings. 
ceedings  in  the  action,  and  his  interest  in  procuring  a  verdict,  General 
in  favour  of  the  party  for  whom  he  has  become  bound,  is  ap-  P^'cipies. 
parent  from  the  proceedings  themselves.       We  shall  presently 
proceed  to  notice  ni  detail  a  variety  of  other  cases,    in  which 
witnesses  are  incompetent  by  reason  of  a  direct  interest  in  the 
event  of  the  particular  suit,  but  where  it  is  necessary  to  look 
beyond  the  proceedings  for  the  ground  of  incompetency.    Be- 
fore doing  this,  it  may  be  desirable  to  advert  to  a  few  leading 
principles  upon  this  important  and  difficult  subject. 

It  is  a  general  rule,  that  a  witness  will  not  be  incompetent  Uncertain 
on  the  ground  of  interest,  unless  the  alleged  interest  be  cer-  '"''^'■^^*- 
tain  in  its  nature  ;  for  if  it  be  a  matter  of  uncertainty,  whether 
the  witness    will    gain  or  lose  by  the  event   of  the  cause,   it 
cannot  be  said  of  him  that  he  is  in  fact  interested,  and  his  tes- 
timony will  therefore  be  received.  (3) 

It  is  also  a  rule,  that  the  interest  must  be  a  legal  existing  Expecta- 
interest ;  if  it  exist  merely  in  the  imagination,  or  belief,  or  '""'' 
expectation  of  the  witness,  he  will  not  be  incompetent,  how- 
ever *  strongly  the  objection   may  be    urged  with  respect  to    [  *82  ] 
his  credibility.  (1) 

In  all  cases  in  which  an  objection  is   raised  to  the  compe-  Competen- 
tency  of  a  witness  on  the  ground  of  interest,  it  lies  upon  the  ^^p*^^""*" 

(1)  Piesley  v.    Von  Escli,  2  Esp.  N.         (3)  R.  v.  Cole,  1  Esp.  9S. 

P.  C.  605.  (l)See  cases  on  this  subject,  posty 

(2)  Hailey  v.  Bailey,    1  Bing.  92.    7     sec    2. 
Moore,  439,  S.  C. 


(a)  A  surety  to  the  sheriff  to  indemnify  him  from  a  levy  upon  persona!  property, 
will  disqualify  him  from  being  witness  for  the  sheriff;  the  indemnity  is  against  the 
very  verdict  in  that  suit,  and  the  interest  therefore  is  direct.  Terry  v.  Belcher  1 
Bail.  R.  5G8. 

The  securities  in  an  administration  bond,  in  a  suit  brought  by  a  distributee  against 
the  administrator,  are  incompetent  to  prove,  that  the  assets  of  the  deceased^'have 
been  consumed  in  the  payment  of  his  debts.  Owens  v.  Collinson,  3  G  &  J  25  ; 
6  Har.  &   J.  162,  394. 

By  statute  an  attorney  who  endorses  a  writ  is  made  responsible  for  the  costs 
which  the  defendant  may  recover— Held,  that  such  liability  excludes  him  from  tes- 
tifying in  the  action.  Ciiadwickc.  Upton,  3  Pick.  442. 

10 


74 


Of  tlte  Rule  of  Interest  to 


[Ch.  7. 


Amount  of 
interest. 


Interest  in 
costs,  (a) 


Balance  of 
interest. 


[*83  ] 


party  making  the  objection  to  establish  its  existence  and  va- 
lidity. The  competency  of  a  witness  ought  to  be  presumed, 
until  the  contrary  be  clearly  shewn,  and  in  cases  of  doubt  the 
Courts  are  always  disposed  to  receive  the  witness  and  to  let 
the  objection  go  to  his  credibility  rather  than  to  his  compe- 
tency. 

If  it  be  made  to  appear  clearly  that  the  witness  is  directly 
interested  in  the  event  of  the  particular  suit,  the  exact  amount 
of  his  interest  is  immaterial,  and  it  will  make  the  witness  in- 
competent, however  small  and  inconsiderable  it  may  be.(2)  A 
person  who  loses  or  gains  the  smallest  sum  by  the  event  of  a 
suit,  whatever  may  be  his  rank,  fortune,  or  character,  is  as 
incompetent  to  give  evidence  as  one  who  may  be  interested 
to  the  amount  of  thousands.  This  is  the  unavoidable  con- 
sequence of  the  general  rule.  If  interest  be  allowed  to  dis- 
qualify in  any  case,  it  must  in  all  ;  as  it  is  impossible  by  any 
scale  to  measure  the  different  effects,  which  it  may  have  on 
different  minds. 

The  interest  may  be  either  in  the  subject  m  issue  in  the 
action,  or  in  the  costs  ;  for,  as  we  have  seen,  in  treating  of  the 
evidence  of  the  parties  to  the  suit,  a  plaintiff  or  defendant, 
who  has  no  actual  interest  in  the  action,  but  merely  sues  or 
defends  for  the  benefit  of  a  third  party,  will  be  incompetent, 
if  he  be  liable  to  be  called  on  for  costs.  And,  of  course,  the 
same  rule  applies  to  witnesses  not  being  parties  to  the  suit. 

Where  the  witness  is  so  situated,  that  he  is  interested  on 
both  sides,  his  competency  will  depend  upon  the  equality  or 
inequality  of  the  adverse  interest.  If  they  should  be  exactly 
*equal,  one  will  counterbalance  the  other,  and  the  witness 
will  be  competent ;  but  if  there  should  be  any  excess  of  in- 
terest on  either  side,  the  witness  will  be  incompetent  to  give 
evidence  on  the  side,  where  there  is  a  preponderancy  of  in- 
terest ;  it  is  obvious,  that  he  is  interested,  to  the  amount  of 
the  excess,  in  procuring  a  verdict  on  that  side. 

It  may  be  observed,  that  many  of  the  cases,  which  might 


(2)  Burton  t).  Hinde,  5  T.  R.  574. 
Per  cur.  Dowdeswell  v.  Nott,  2  Vern. 
317.    There  was  formerly  some  doubt 


on  this  subject,  see  the  cases  cited  as  to 
members  of  corporations.     Ante,  p.  48v 


(a)  It  is  a  well  settled  rule,  that  an  interest  in  costs  will  exclude  a  witness.  Bill 
«.  Porter,  9  Conn.  R.  29;  Owens  u.  Collinson,  3  G.  &  J.  34. 

A  principal  who  has  no  interest  in  a  controversy  between  sureties  is  a  competent 
witness.  Thus,  in  a  suit  for  contribution,  the  principal  cannot  be  made  liable  for 
costs  and  consequently  is  admitted  to  testify.  6  Pick.  419.     See  2  id.  240. 

An  attorney  is  a  competent  witness  when  he  is  fully  indemnified  against  his  lia- 
bility for  costs.  Chaffee  v.  Thomas,  7  Cowen,  358.  But  where  the  attorney  pros- 
ecuted a  suit  in  the  name  of  a  person  in  England,  Held,  that  he  could  not  testify, 
although  it  appeared  that  he  was  retained  by  a  person  residing  here  for  whose  ben- 
efit the  suit  was  prosecuted.  "For  aught  that  appears,  said  the  Court,  that  person 
may  be  insolvent,  and  the  attorney  have  no  security  indemnifying  him  against  his 
liability  for  the  costs.     Jones  v.  Savage,  6  Wend.  658. 


Ch.  7.  J  Persons  not  Parties  to  the  Suit.  7^ 

be  cited  in  illustration  of  these  general  principles,  do  not  be- 
long to  the  present  subject  of  inquiry,  viz.  what  interest  will 
produce  disqualification,  but  range  themselves  under  the  next 
head  of  inquiry,  viz.  what  interest  will  7iot  produce  disquali- 
fication. However,  as  both  branches  of  inquiry  are  intimate- 
ly connected,  and  the  above  division  has  been  adopted  merely 
for  the  purpose  of  convenience,  it  will  be  of  material  use  to 
bear  in  mind  the  general  principles,  before  laid  down,  while 
we  enter  in  detail  on  the  consideration  of  those  decided  cases, 
in  which  witnesses  have  been  rejected  as  incompetent  on  the 
ground  of  interest.  In  some  of  these  cases,  the  interest  of 
the  witness  will  be  found  to  be  perfectly  clear  and  direct ;  in 
others,  some  nicety  will  be  required  in  distinguishing  between 
direct  interest  in  the  event  of  the  particular  suit,  and  interest 
in  the  record  as  matter  of  evidence  :  in  other  cases  again,  it 
will  be  found  difficult  to  discover,  whether  the  witness  has 
any  interest  whatever  in  the  event  of  the  suit.  The  method, 
we  shall  in  general  pursue  in  examining  these  cases,  will  be, 
to  commence  with  those  in  which  the  interest  is  most  obvi- 
ous and  direct,  and  in  which  the  situation  of  the  witness  ap- 
proaches nearest  to  that  of  a  party  in  the  proceedings. 

It  has  been  before  observed,  that  when  an  action  is  brought  Examples, 
by  or  against  a  person  as  a  trustee    for  another,  the    person 
who  is  substantially  interested  in  the  action,  though  not  nomi- 
nally a  party,   is  incompetent  by  reason  of  a  direct  interest. 
Therefore,  in  an  action  on  a  policy  of  insurance,  where  the  person  in- 
declaration  averred,  that  the   policy  was  made  in  the  names  '^J,^f  ^'^ '" 
of  the  plaintiff's  as  agents  for  the   sole  use  and  benefit  of  A.    r  #8*4  1 
and  B.,  who  were  ^interested  in  the  goods  insured,  neither  of 
the  persons  so  interested  is  a  competent  witness  for  the  plain- 
tiff's.    And  even  their  release  to  the  plaintiff",  of  all  actions  for 
any  sum  recovered  by  them   on  the  policy,    will  not  restore 
their  competency  ;  for  it  must  be  presumed,  until  the  contrary 
be  shewn,  that,  as  they  are  interested  in  the  policy,  the  action 
has  been  brought  by  their  authority,  and  that  they  are  liable 
to  the  attorney  for  the  costs  of  the  action.    Nor  will  the  circum- 
stance of  the  nominal  plaintiff's  in  the  action  having  received  an 
indemnity  from  other  persons,  make  any  diff'erence,  the  witness 
still  remaining  liable  to  the  attorney  in  respect  of  the  costs.(l)  Consolida- 

In  actions  on  policies  of  insurance  where  there  has  been  a  "°"  *""  ^' 
consolidation  rule,  an  underwriter,  who  is  a  party  to  such  rule, 
is  of  course  as  directly  interested  in  the  event  of  the  particu- 
lar cause,  as  if  he  were  a  party  to  the  cause  itself;  and  he  is, 
therefore  incompetent.  So  in  a  case,  where  the  defendant  in 
an  action  on  a  policy  of  insurance  called  another  underwriter 
as  a  witness,  who  stated  that  he  had  paid  the  loss  to  the  plain-  Collateral 
tiff",   upon  an  undertaking   that  he    was  to  be  repaid  in  the  "&''^*^'"*"'- 

(1)  Bell  V.  Smith,  5  B.  &  C.  188. 


76  Of  the  Rule  of  Interest  to  [Ch  7~ 

event  of  this  action  failing,  and  that  he  had  since  received  a 
letter  from  the  plaintilf,    ])romising  to  return  the    money  on 
that  event,  Lord  Ellenhorongh,  C.  J.,  at  the  trial  rejected  the 
witness.     On  a  motion  afterwards  for  a  new   trial,  the  Court 
sent   the  case  to  he  re-tried,  for  the  purpose  of  ascertaining 
more    particularly  the  time  when  the  undertaking  was  made 
to  the  witness  ;  hut  on  that  occasion  Lord  EUenborough  said, 
"  If  a  person,  who  is  under  no  obligation  to  become  a  witness 
for  either  of  the  parties  to  the  suit,  choose  to  pay  his  debt  be- 
fore hand,  upon  a  condition  that  it  is  to  be  determined  by  the 
event  of  that  suit,  he  becomes  as  much  interested  in  the  event 
of  that  suit,  as  if  he  were  a  party  to  the  consolidation  rule.  (2) 
Joint  inter-      *Upon  the  Same  principle,  one  who  is  in  partnership  with 
Ject'of  ac-    the  defendant  is  not  a  competent  witness  to  discharge  a  debt, 
lion,   ran-  to  which,  as  partner,  he  would  be  jointly  liable.      In  an  ac- 
cont'ractoTs.  tiou  for  goods  sold  aud  delivered,  the  plaintiff  having  proved 
[  *S5  j    the  sale  of  the  goods  to  the  defendant  and  to  one  J.  S.  as  part- 
ners in  trade,  Lord  Kenyon  held,  that  J.  S.  could  not  be  call- 
ed for  the  defendant  to  jn-ove  that  the  goods  were  sold  to  him- 
self,  and  that  the   defendant   was  not  concerned  in  the  pur- 
chase except  as  his  servant,  observing,  that  the  witness  came 
to  defeat  an  action  against  a  man   proved  to  be   his  partner, 
and  that  by  discharging  the   defendant  he  benefited  himself, 
as  he  would  be  liable  to  pay  his  share  of  the  costs  recovered 
by  the   plaintiff  in  that  cause.  (1)  {a)      In  a  similar  action, 
where  the  plaintiff  proved   that  the  goods  had  been  sold  and 
delivered  to  the  defendant,  it  was  held  that  a  partner  of  the 
defendant  was  an  incompetent  .witness  for  him,  to  prove   that 
the  goods  had  been  sold  to  the  defendant  and  to  the  witness 
jointly,  and  had  been  paid  for  by  them.  (2)      And  in  a  late 


(2)   Forester   v.    Pigon,    1    Maule   &  ness  is  incompetent.     See  jiost,  where 

Selvv.  9.     3    Campb.  380,    S.  C.     The  these  exceptions  are  noticed, 
time  at  which  a  witness  acquires  an  in-         (1)  Goodacre  v.   Breame,   Peake  N. 

terest   in  the   event  of  the   suit  may,  in  P.  C.  174. 

certain  cases,  become    material  ;  and    it         (2)  Evans  v.   Yeatherd,  2    Bing.  133. 

sometimes  gives  rise  to   an  exception  to  See  also  Cheyne  v.  Koops,  4  Esp.  112. 
the  general   rule  that  an  interested   wit- 

(ffl)  In  Churchill  v.  Bailey,  13  Maine,  64,  Held,  that  though  a  partner  sells  the 
property  of  the  firm  in  his  own  name,  he  is  nevertheless  a  competent  witness  for 
the  purchaser,  if  the  latter  shall  execute  a  proper  release.  See  post^?.  1S4.  See  7 
Wend,  326;  9  id.  394;  6  id.  397  and  3  Wend.   240. 

Where  two  or  more  persons  enter  into  a  joint  contract  to  pay  or  to  do  any  act, 
the  liability  of  the  party  does  not  rest  on  the  notion  of  a  partnership  between  them, 
but  results  from  their  express  agreement.  Per  Bronson,  J.  15  Wend.  193  :  4  Cow- 
en,  163.  To  cor)slitute  a  partnership  in  a  single  concern,  or  in  a  particular  pur- 
chase, there  must  be  either  a  joint  undertaking  to  pay,  or  an  agreement  to  share 
in  the  profifs  and  loss.''  Per  Spencer,  J.  9  J.  R.  503.  A  community  of  inter- 
est in  lands  does  not  make  men  partners,  nor  does  a  mere  community  of  interest 
in  personal  property.  15  Wend.  187.  And  it  has  been  held  that  the  law  iT?erchant 
respecting  dormant  partners  does  not  extend  to  speculations  in  land.  Per  Parsons, 
C.  J.  4  Mass.  424. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  '  7t 

ease  where  the  action  was  on  a  bill  of  exchange,  and  the  de- 
fendant called  a  witness  who  admitted  that  he  was  a  co-con- 
tractor with  the  defendant,  the  Court  of  Common  Picas  held, 
that  the  witness  was  incompetent,  for  being  liable  to  contribu- 
tion for  the  costs  and  damages  in  the  action,  he  had  an  inter- 
est to  defeat  the  action,  or  reduce  the  damages.  (3)  So  also  Plea  in 
where  in  an  action  the  defendant  pleads  the  non-joinder  of  a  co 
contractor  in  abatement,  such  co-conlractor  will  be  an  incom. 
petent  witness  for  the  defendant  in  support  of  the  plea.(4)(6) 


abalenienl. 

(a) 


(3)  Hall».  Rex,  6  Bing.   181.  Hare  u.  Munn.Mo.  &  Ma.  N.  P.  C,  241. 

(4)  Young   V.   Bairner,    1  Esp.    103.     n.  (a). 

(a)  One  of  two  defendants  cannot  plead  any  matter  in  abatement  of  a  joint  suit, 
which  is  applicable  to  himself  alone;  for  the  plea,  in  such  case,  does  not  reach 
the  whole  cause  of  action.  The  plea  must  be  sulficient  to  defeat  the  suit  against 
both  defendants;  and  to  accomplish  that,  the  joint  defendants  must  unite  in  the 
plea.  In  De  Forest  v.  Jewett  and  Parsons,  2  Hall,  137,  Parsons  plead  the  service 
of  a  process  of  foreign  attachment  upon  him  alone  in  Connecticut,  and  set  it  up  by 
way  of  defence  to  the  action  against  himself  and  Jewett,  founded  upon  a  joint 
promise  by  both;  Held,  that  such  a  defence  could  not  avail  unless  both  defendants 
unite  therein: — nothing  can  abate  the  suit,  which  is  not  pleaded  by  both. 

If  one  man  is  legally  answerable  to  two  or  more  persons  jointly,  if  he  will  settle 
and  adjust  the  controversy  with  either  of  them,  so  that  he  has  no  longer  an  interest 
in  the  dispute,  this  is  a  severance  of  the  cause  of  action  as  to  any  or  all  the  parlies. 
Baker  u.  Jewett,  6  IMass.  460.  It  makes  no  difference  in  this  respect,  whether 
the  action  arises  from  a  contract  or  from  a  tort.  id.  Thus,  in  an  action  on  the  case 
to  recover  damages  for  a  fraudulent  alhrraalion  in  respect  to  the  sale  of  one  eighth 
part  of  a  saw-mill,  the  defendant  pleaded  in  abatement,  the  non-joinder  of  one  B, 
B.  The  plaintiff" replied  that  B.  13.  sued  defendant  and  recovered  his  damages  as 
owner  of  part  of  said  mill;  and  upon  demurrer,  the  Court  held,  that  the  plea  was 
not  sufficient. — Parsons,  C.  J.  saying: — "When  the  defendant  permitted  B.  B.  to 
proceed  alone  for  his  damages,  and  referred  his  demand  to  referees,  on  whose  re- 
port B.  B.  had  judgment,  he  in  law  agreed  to  a  severance  of  the  demand  for  dama- 
ges, and  cannot  now  take  exception  to  the  plaintift"'s  writ,  because  he  has  sued 
without  joining  B.  B.  who  is  already  satisfied  for  his  damages." 

If  two  persons  advance  money  severally  for  a  third,  they  cannot  sue  jointly,  but 
each  must  sue  severally.  Thus,  in  Smith  v.  Sayward  and  al,  5  Greenl.  504,  the 
defendants,  being  tenants  in  common  of  certain  real  estate  with  one  A.,  whose 
share  they  wished  to  purchase,  and  employed  S.  to  make  the  purchase  in  his  own 
name;  and  defendants  also  requested  plaintiff' to  become  surety  to  S.  for  the  pur- 
chase money  : — Held,  that  such  surety  having  paid  the  money  might  sue  defend- 
ants to  recover  the  amount  paid.  Such  a  promise  is  not  within  the  statute  of  frauda 
ib.  and  cases  cited. 

(b)  All  the  partners  have  the  same  interest  in  averting  the  event  of  the  suit;  and 
though  not  sued,  they  are  directly  interested  in  the  event  of  the  suit.  If  the  debt 
i«  paid  by  the  partners  who  are  sued,  they  have  a  right  to  charge  over  to  the  con- 
cern, both  the  debt  and  costs  of  suit,  as  an  expense  to  be  borne  by  the  firm.  Bill 
V.  Porter,  9  Conn.  11.  27.  In  Spaulding  v.  Smith,  1  Fairf.  R.  363,  it  was  held, 
that  a  partner  not  sued  was  not  admissible  to  prove  the  averment  in  a  plea  of  abate- 
ment that  defendant  and  witness  were  co-partners  at  the  time  the  action  was  com- 
menced; because  should  the  plaintiff  recover,  the  costs  would  be  a  charge  on  the 
joint  fund,  and  the  witness  would  be  bound  to  contribute  his  proportion  of  their 
amount. 

A  dormant  partner  is  likewise  inadmissible  as  a  witness  for  his  co-partner,  the 
ostensible  partner;  and  his  competency  cannot  be  restored  by  his  release  of  all  his 
interest  in  the  particular  transaction; — it  is  an  interest  of  liability  which  neither  he, 
nor  his  partner,  is  competent  to  release.  Pickett  v.  Cloud,  1  Bail.  R.  362.  See  also 
9  Wend.  286.     See  6N.  H.  R.  518;  1  M'Cord  552. 

In  Grout  v.  Shurter,  I  Wend.  148,  a  surviving  partner  was  admitted  to  prove 
the  partnership;  the  action  being  against  the  administrators.     The  ground  of  the 


of  bond. 


78  Of  the  Rule  of  Interest  to  [Ch.  7. 

Nauire  of  It  is  to  be  observcd,   that  in  all  these  cases   the  proposed 

inli'ieseTa-  witiiess  admitted  his  own  liability  to  the  demand,  which  was 
ses.  the  subject  of  the  action,  and  therefore  to  a  certain  extent  he 

appeared  to  be  giving  evidence  against  his  own  interest.  But 
although  he  admitted  his  liability  to  be  sued  in  another  ac- 
tion, yet  the  object  of  his  testimony  was  to  defeat  the  plain- 
[  *86  J  tifl*  in  the  ^particular  action  then  pending  ;  and  hence  arose 
that  direct  interest  in  the  event  of  the  suit,  which  rendered 
him  incompetent.  For  if  the  plaintiff  had  succeeded  in  the 
action,  the  Avitness,  as  partner  or  co-contractor,  would  have 
been  liable  to  contribution  not  only  for  the  damages  recovered, 
but  also  for  the  costs  ;  whereas  by  defeating  the  plaintiff  the 
witness  would  not  only  have  relieved  himself  from  all  liability 
in  respect  of  the  plaintiff's  costs,  but  would  also  have  thrown 
upon  the  plaintiff  the  burthen  of  the  costs  incurred  by  the 
defendant,  and  in  respect  of  which  the  witness  might  also 
have  been  called  on  to  contribute.  (1)  (a) 
ro-oMi|jor  In  an  action  on  a  joint  and  several  bond  against  one  of  the 
obligors,  who  was  surety  for  another,  that  other  obligor,  (the 
principal,)  is  not  competent  for  the  defendant,  to  prove  a  pay- 
ment of  money  by  himself  in  discharge  of  the  bond  :  for  he 
has  an  interest  in  favour  of  his  surety  to  the  extent  of  the  costs 
of  the  action.  (2)  (6) 

(1)  See  the  cases  in  which  it  has  been  (2)  Townsend  v.   Downing,   14  East, 

held,  that  a  partner  or  co-contractor  with  565.     See  also  Trelawney  w.  Thomas, 

the  defendant,  is  competent  for  the  plain-  1  II.  Bl.  306.     And  see  other  cases  as  to 

tiff.     Post.     And  see  as  to  the  effect  of  incompetency   from    liability    to    costs, 

a  release  from  one  partner  to   another  in  Post, 
restoring  competency.     Post. 

decision  in  this  case  was,  that  being  a  partnership  contract,  the  surviving  partner 
alone  could  be  sued;  the  legal  representative  being  discharged  from  all  liability — 
He  is  not  liable  in  a  court  of  law,  id.  The  only  exception  to  this  course  is  where 
the  contract  is  made  joint  and  several,  id. 

Held  also,  that  the  evidence  of  a  joint  contract  was  admissible  under  the  general 
issue,  id. 

In  assumpsit  to  recover  the  avails  of  sales  of  cotton  goods  against  two  comraissioa 
merchants,  one  was  defaulted  and  the  other  pleaded  that  he  never  promised  with 
the  other  defendant;  and  on  the  trial  offered  the  defaulted  party  as  witness,  but  ha 
was  rejected,  13  Pick.  125. 

(a)  In  Sumner  v.  Tileston,  7  Pick.  190,  it  was  held,  that  where  co-partners  di- 
vide certain  goods  which  have  been  received  on  joint  account;  and  subsequent  to 
the  division,  the  goods  of  one  is  taken  to  satisfy  execution  against  the  former  own- 
er, the  co-partner  was  not  admissible  as  a  witness  in  support  of  the  title. 

(6)  Canty  v.  Sample,  2  Bay,  93;  Riddle  v.  Moss,  7  Cranch,  206;  See  1  Dana, 
430. 

A  co-obligor  who  is  merely  a  surety  cannot  be  admitted  to  testify  in  an  action 
against  the  principal,  Terry  v.  Belcher,  1  Bail.  R.  568;  Owens  v.  Collinson,  3  G. 
&  J.  25. 

In  Lovett  v.  Adams,  3  Wend.  380,  a  co-obligor  was  admitted  as  a  witness  in 
an  action  against  a  part  of  the  obligors.  The  defence  was  the  non-delivery  of  the 
bond  by  the  defendants;  and  the  fact  was  offered  to  be  proved  by  a  co-obligor  an 
to  whose  execution  there  was  no  dispute;  but  the  witness  was  rejected  at  the  trial. 
But  a  new  trial  was  granted  by  the  supreme  court,  on  the  ground,  that  the  interest 
of  the  witness  would  prompt  him  to  sustain  the  bond.  "  Neither  could  the  verdict 
in  this  case,  for  or  against  the  defendants,  benefit  the  witness  in  a  suit  against  him- 
self." 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  79 

In  ail   action  by  an  executor  to   recover  a  debt  due  to  the  Residuary 
testator,  a  residuary  legatee  is  an  incompetent  witness  for  the  ASuoTb^ 
plaintiff'.  (3)  (a)     This  incompetency  does  not  arise  from  the  executor, 
use  of  the  verdict  as  evidence  in  any  future  suit,  for  the  wit- 
ness could  neither  be  plaintiff  nor  defendant  in  an  action  re- 
lating to  the  debt ;  the  witness  is  disqualified,  because  he  re- 
ceives an   immediate  benefit  by  a  verdict  for  the  plaintiff".  (4) 
The  action  is  in  the  name  of  the  executor,  but  the  witness  is 
the  party  substantially  interested  in  the  event.     And  even  if 
the  witness  release  all  claim  to  the  debt  in  question,  this  will 
not  restore  his  competency,  for  he  has  still  an  interest  in  sup- 
porting the  action  in  order  that  the  costs  may  not  be  a  charge 
on  the  estate.  (5) 

*In  an  action  by  an  administrator  against  a  debtor  of  the  ^"J,"'^^'''" ' 
intestate,  a  person  entitled  to  a  distributive  share  of  the  estate,  administra- 
will  not  be  a  competent    witness  to  support  the   action.  ( 1 )  Y'^ar  i 
And  it  has  also  been  ruled,  that  a  witness  so  situated  will  not    ^  -» 

be    competent  for  the  administrator,   in  an  action  brought 
against  him  in  that  character.  (2)  (6) 

(3)  Baker  v  Tytwhitt,  4  Campb.  27.  restore  competency,  the  right  of  the  wit- 

(4)  Per  Tindal,  C.  J.,  6  Bing.  394.  ness    being    prospective.     The    question 

(5)  Baker  v.  Tyrwhitt,  supra.  of  costs  seems  not  to  have  been  advert- 
(1)  Matthews  «.  Smith,  2  Y.    &  J.  ed  to  in  this  case.     See  Ingram  «.  Dade, 

426.     It  was  also  decided  in  this  case,  post. 

that  a  release  from  the  witness  to  the  ad-         (2)  AllingtoH    v.   Bearcroft,    Peake's 

ministrator  of  all  claims  up  to  the  time  Add.  Ca.  212. 

of  executing   the   release   would  not 

(a)  Campbell  iJ.  Campbell^  7  Cowen,  64.  Here,  the  witness  was  offered  specifying 
for  whcit  purpose  he  was  called,  and  he  was  rejected  as  having  a  direct  interest  in 
the  event  of  the  suit.  By  defeating  the  plaintiff's  action,  he  would  have  protected 
the  fund,  of  which  he  was  one  of  tiie  residuary  legatees;  and  which  would  of  course 
have  been  diminished  by  the  plaintiff's  recovery.  Mr.  J.  Sutherland  in  delivering 
the  judgment  of  the  court  cited  5  J.  R.  258;  1  Mass.  239;  2  Day,  466. 

If  he  is  a  legatee,  he  is  incompetent  to  testify  for  the  executor,  although  he  has 
no  interest  in  the  residium.  Strong  v.  Finch,  1  Alaba.  R.  256.  Although  he 
has  in  fact  received  the  legatey,  it  matters  not  so  long  as  the  same  is  subject  16' 
abatement. 

But  a  legatee  who  has  transferred  his  interest  to  another,  is  admissible  to  prove 
the  will,  although  the  consideration  for  the  transfer  was  secured  by  a  bond  not  yeJ 
payable.     M'llroy  «.  M'Uroy,  I  Rawie  433. 

(b)  It  seems  to  be  a  general  principle,  that  a  person  cannot  be  a  witness,  to  in- 
crease or  prevent  the  diminution  of  a  fund,  in  which  he  is  to  participate,  and  upon 
this  principle  the  children  of  an  intestate,  entitled  to  a  distributive  share  of  the  per- 
sonal estate,  are  incompetent  to  testify  generally  in  an  action  against  the  administra- 
tor at  the  suit  of  a  creditor  of  the  intestate.  5  J.  R.  258;  1  Mass.  239;  2  Day, 
466.  But  in  Vultee  v.  Rayner,  2  Hall,  376,  the  defendant  was  sued  as  adminis- 
tratrix of  her  husband;  she  pleaded  non-assumpsit  and  plene  administravit, 
and  upon  the  trial  offered  Henry  Vultee,  one  of  the  children  as  a  witness  to  prove 
the  payment  of  debts  by  the  defendant,  in  the  due  course  of  administration.  He 
was  rejected  in  the  court  below,  but  the  superior  court  reversed  the  judgment — 
Oakley,  J.  saying: — "It  is  quite  apparent,  that  the  witness  had  no  interest  in  the 
question,  which  was  proposed  to  be  put  to  him;  for  if  the  plea  of  plene  adminis- 
travit had  teen  sustained,  the  plaintiff  below,  would  have  had  judgment  for  assets 
infuturo.  I  see,  therefore,  no  objection  in  principle,  to  the  competency  of  the 
witness,  to  answer  the  questions  proposed  to  be  put  to  him.  4  Cranch,  R.  69;  4 
J.  R.  293." 


80 


Of  the  Rule  of  Interest  to 


[Gh.  7. 


Specific 
legatees, 
creditors, 
&c.     See 
post. 


I?ankriipt. 
Incoinpe- 
tciit  to  in- 
crease fund, 


Necessity 
of  certiti- 
cate. 

Second 
commis- 
sion. 

[*S8] 


Incompe- 
tent 10  sup- 
port or  de- 
feat fiat. 


Ill  these  cases,  the  natural  and  immediate  effect  of  a  verdict 
in  favour  of  the  executor  or  administrator  would  be,  to  benefit 
the  general  fund  in  which  the  witness  was  interested ;  but  it 
will  be  seen  hereafter,  that  the  principle  of  these  cases  has 
been  held  not  to  a,})])ly  to  specific  legatees,  whether  paid  or  un- 
paid, or  to  creditors  of  the  testator  or  intestate.  (3)  («) 

The  situation  of  a  bankrupt  bears  some  resemblance,  in 
point  of  interest,  to  that  of  a  residuary  legatee.  The  bank- 
rupt is  interested  in  increasing  his  estate,  for  his  allowance  un- 
der the  bankru])t  act,  depends  upon  the  clear  amount  of  the 
funds  recovered  by  his  assignees,  and  tlie  surplus,  if  any,  after 
his  creditors  are  satisfied,  belongs  to  himself.  This  is  an  in- 
terest which,  in  actions  by  or  against  his  assignees,  renders 
him  an  incompetent  witness  on  behalf  of  the  assignees,  for  the 
purpose  of  adding  to  the  amount  of  the  fund,  or  to  preserve  it 
from  diminution.  (4)  In  order  to  render  the  bankrupt  com- 
petent in  such  cases,  he  must  release  his  allowance  and  sur- 
plus :  and  it  is  also  necessary,  that  he  should  have  obtained 
his  certificate,  without  which  his  evidence  will,  in  no  ease, 
be  admissible  on  behalf  of  his  assignees.  (5) 

*Where  there  has  been  a  second  commission  against  the 
bankrupt,  and  he  has  not  paid  fifteen  shillings  in  the  pound, 
he  will  not  be  a  competent  witness  for  his  assignees,  although 
he  has  obtained  his  certificate  and  released  his  allowance  and 
surplus  ;  for  his  future  effects  remain  liable  until  payment  of 
fifteen  shillings  in  the  pound,  and  he  is  therefore  interested  in 
increasing  the  fund,  in  order  to  relieve  himself  from  this  lia- 
bility. (1) 

There  is  another  case,  iuAvhich  a  bankrupt  is  wholly  incom- 
petent to  give  evidence  in  any  action  by  or  against  his  as- 
signees, notwithstanding  he  may  have  obtained  his  certificate 
and  released  his  surplus  and  allowance  :  this  is,    where    the 


(3)  Post,  sect.  2,  p.     . 

(4)  Ewens  v.  Gold,  B.  N.  P.  43. 
Butler  V.  Cooke,  Cowp.  70.  Exparte 
Burl,l  3Iad.  Rep.  46. 

(5)  See  Dixon  ».  Purse,  Peake's  Add. 
Ca.  187.  Masters  v.  Drayton,  2  T.  R. 
496.  Goodhay  v.  Hendry,  Mo.  &  Ma. 
319.  See  also  Tennant  v.  Strachan,  ib. 
378,  where  Lord  Tenterden  refused  to 
postpone  a  trial  on  the  ground  that  the 
bankrupt,  whose  testimony  was  wanted, 
would  shortly  become  competent,  by 
the  Lord  Chancellor  allowing  his  certifi- 
cate, which  had  already  been  signed  by 
a  sufficient  number  of  creditors. 


(1)  Kennett  v.  Greenwoblers,  Peake's 
N.  P.  C.  3.6  Geo.  4,  c.  16,  s.  127. 
The  same  principle  applies  to  a  party 
who  has  become  bankrupt  after  having 
compounded  with  his  creditors.  See 
the  words  of  the  section  above  referred 
to.  But  where  the  composition  has  not 
been  general,  but  has  been  limited  to 
particular  creditors  only,  the  objection 
will  not  arise.  Roberts  v.  Harris,  2  C. 
M.  &  R.  292.  See  Norton  v.  Shaks- 
peare,  15  East,  619. 


(a)  A  person  who  is  so  situated  in  relation  to  the  property  in  controversy,  as  to  be 
liable  to  refund  the  money  received  by  him  from  the  plaintitr  for  the  property  sold 
in  case  of  the  failure  of  title  of  the  plaintiff  is  not  a  competent  wilness  for  the  plain- 
tiff.    Lowrej  v.  Summers,  7  Hals.  240. 


CIi.  7.J  Persons  not  Parties  to  the  Suit.  81 

bankrupt  is  called  for  the  purpose  of  proving  any  fact,  which 
is  material  either  to  support,  or  to  defeat,  the  fiat  issued 
against  him.  (2)  The  doctrine,  that  a  bankrupt  is  incompe-  Reason  "f 
tent  to  give  evidence  in  support  of  his  commission,  has  been 
sometimes  referred  to  the  ground  of  interest ;  it  has  been  said, 
ii  the  fiat  or  commission  is  not  good,  the  certificate  and  all 
other  proceedings  are  void,  and  the  bankrupt  will  be  again  lia- 
ble to  his  debts.  (3)  If,  however,  this  were  *considered  as  [  *89  ] 
the  sole  foundation  of  the  rule,  it  would  appear  to  follow,  that 
the  same  ground  which  disqualified  a  bankrupt  from  giving 
evidence  to  support  his  commission,  would  render  him  com- 
petent to  defeat  it.  But  it  seems  to  be  pretty  clear  that  in 
either  case  the  interest  of  the  bankrupt,  one  way  or  the  other, 
will  depend  entirely  upon  circumstances.  A  bankrupt  has 
frequently  an  interest  in  supporting  a  commission  or  fiat,  but 
he  has  also  as  frequently  an  interest  in  defeating  it,  where 
such  is  his  object  and  desire.  (1)  The  rule  in  question,  there- 
fore, seems  to  have  been  considered  as  resting  not  entirely 
upon  the  ground  of  interest,  but  partly  upon  considerations  of 
policy  and  convenience.  It  would  often  be  exceedingly  diffi- 
cult to  discover,  when  the  bankrupt  is,  and  when  he  is  not 
interested,  in  supporting  or  defeating  his  commission.  And 
if  his  testimony  were  generally  admitted,  he  would  often  be 
called  on  to  make  statements  of  matters  resting  in  his  own 
knowledge  alone,  and  the  proceedings  under  fiats  of  bankrupt- 
cy would  be  rendered  generally  insecure.  (2)  Whatever  may 
have  been  the  foundation  for  the  rule,  at  all  events  the  prac- 
tice on  the  subject  has  been  fully  settled,  and  it  is  clear,  the 
bankrupt  cannot  be  called  either  to  affirm,  or  disaffirm  his 
bankruptcy,  nor,  if  called  and  examined  for  any  other  purpose, 
can  he  be  asked  on  cross-examination  any  questions  as  to 
facts,  which  are  material  to  support  or  defeat  the  fiat.  (3) 

f2)  The   followinn;   are  some    of  tho  In    Oxiadc   u.    Perchard,    1    Esp.    287, 

principal   cases  on   this  point.     That    a  Lord  Kenyon  had   ruled  differently,  and 

bankrupt    is    incompetent  to    prove    his  had  considered  the    bankrupt  admissible 

own  act  of  bankruptcy.     Field  v.    Cur-  to  explain  an  equivocal  act,    but  in  Say- 

tis,  2  Stra.  828.  Ewens  t).  Gold,  B.  N.  P.  er  v.    Garnett,  7    hing.    104,    Park,  J., 

40.     Per  Lord  Kenyon,  Oxlade  v.    Per-  said,     that    Lord    Kenyon     afterwards 

chard,  I    Esp.    28S.     Per.   Lord    Ellen-  changed  the  opinion  he  had  there  expres- 

horough,    HofTman    v.   Pitt,   5  Esp.    25.  sed. 

Wyatt  )).  Wilkinson,  .5  Esp.  187.     That         (:))    See    by    Lord    C.    J.    Ryder,    in 

a  bankrupt  is    incompetent  to    prove  the  Flower  v.  Herbert.  2  17.  PI.   279,  n.  (a), 

petitioning    creditor's    debt.       Cross    v.  by  Baylcy,  J.,  and  Ilolroyd,  J.,  2  B.  & 

Fox,   2  li.  Bl.  299,  n.  (a).     Flower  ».  C.  18,  19, 

Herbert,  ib.  279,   n.  (a).     Chapman  v.         (1)  Per  Tindal,  C.  J.,  7  Bing.  104. 
Gardner,  2    IL  Bl.   279.     That  a  bank-  (2)  Ibid. 

rapt  is  incompetent  to  disprove   the  al-         (3)    Binns   r.    Tetley,    McLel.    397. 

leged  act  of  bankruptcy,  or  to  explain  an  Saver   «.  Garnctl,    7    Bing.    103.     The 

equivocal    act.     Hoffman  d.  Pitt,  .5  Esp.  rule  is  restricted  to  evidence  affirming  or 

22.    Binns  t).  Tetley,  Mcl^el.  &,  Y.  404,  disathrming    the    bankruptcy,    and    will 

in  which  case  all  the  auliiorities  were  re-  not  be  extended  to  exclude  the  bankrupt 

viewed. — Sayer  v.  Garnett,  7  Bing.  103.  from  giving  evidence  of  facts,  which  in 

11 


82  Of  the  Rule  of  Interest  to  [Ch.  7. 

d"b°!)7"'  '^^^^  objection  of  a  direct  interest  in  increasing  the  fund  of 
his  estate,  which,  in  general,  disqualifies  a  bankrupt  from  giv- 
ing evidence  in  behalf  of  his  assignees,  applies  also  to  the  case 
of  a  person  who  has  taken  the  benefit  of  the  insolvent  act.  (4) 
And  as  the  future  ellects  of  an  insolvent  arc  liable  to  his  cred- 

l  "0  J  itors  under  the  judgment,  which  the  act  directs  to  be  *enter- 
ed  against  him,  he  will  not  be  rendered  a  competent  witness 
by  releasing  his  surplus  to  his  assignee. (1)  {a) 

Cre.iitor  of       lu  tlic  casc  of  bankruptcy  or  insolvency,  the  interest  of  the 

iiTsdvent  *"  bankrupt  or  insolvent  in  the  fund  is  of  the  nature  of  a  residua- 
ry interest,  being  subject  to  the  rights  of  the  creditors,  the 
persons  primarily  interested  in  the  fund  which  may  be  real- 
ized by  the  assignees.  The  amount  of  the  creditors'  dividend 
must  depend  upon  the  amount  of  the  fund,  and  a  creditor  is  an 
incompetent  witness  for  the  purpose  of  increasing  the  estate, 
on  account  of  this  direct  interest  in  the  event  of  the  suit.(2)  (6) 

themselves  are  not  material  to  tlie  valid-  (1)    Delafieid   v.    Freeman,    6    Bing. 

ily  ol"  the  liat.     See    Kcud  v.    James,  1  294.     4  Car.  &  P.  G7,  S.  C.    Rudge   v. 

Stark.  N.  1'.  C.    134.     Morgan  u.  Prior.  Freeman,  supra.     See  stat.  7   G.  4,  c. 

2  13.  k  C.  14,  jwst.  57,  sect.  57. 

(4)  Rudge   I'.  Ferguson,   1  Car.  &  P.  (2)   Shuttleworlh  v.   Bravo,    1    Stra, 

253.     Wilkins  v.   Ford,    2   Car,  k   P.  507; 
344. 


(o)  In  Griffin  v.  Brown,  2  Piok.  304,  which  was  action  against  the  sheriff',  for 
tho  escape  of  a  debtor,  Held,  that  the  latter  was  incompetent  lo  testify  for  tbesher- 
iti' ;  to  show  his  inability  to  pay  the  debt. 

The  debtor  being  incompetent,  his  wife  was  also  incompetent  to  testify,  id. 

However,  in  a  subsequent  case  against  an  attorney  for  not  paying  over  money 
collected,  Held,  that  the  debtor  who  paid  the  money  was  competent  to  prove  that 
fact.  Gilford  v.  Collin,  5  Pick.  447. 

In  Jackson  u.  Peck,  4  Wend.  300,  a  debtor  who  claimed  title  to  lands  by  a 
judgment  and  execution,  is  not  a  competent  witness  in  an  action  at  the  suit  of  a 
purchaser  of  the  same  estate. 

(6)In  general,  the  creditor  ofa  deceased  person  may  be  a  witness,  although  his  tes- 
timony tends  to  increase  the  estate  of  the  deceased.  But  I  think  he  would  not  be 
competent,  if  it  clearly  appeared,  that  payment  of  his  debt  depended  upon  the 
event  of  the  suit  in  which  he  was  called  to  testify.  Per  Tilghman,  C.  J.  3  S.  &  R. 
427 ;  14  id.  178.  So,  if  he  but  acknowledges  an  expectation  that  he  shall  be  ben- 
efited  by  the  fate  of  the  cause.     ]M.  Veaugh  v.  Goods,  1   Dall.  62. 

In  Ogier  v.  Holmes,  1  Bail.  R.  473,  which  was  an  action  on  a  bond  to  recover 
the  atnount  against  the  defendant  as  administrator,  the  witness  offered  to  disprove 
the  demand,  stated  on  his  voire  dire,  that  he  was  the  first  of  three  endorsers  ofa 
promissory  note  of  the  intestate  on  which  the  bank  had  recovered  judgments  against 
himself  and  the  intestate  in  his  life  time;  that  he  believed  the  estate  to  be  insolvent, 
the  only  property  which  remained  being  a  plantation,  which  was  mortgaged  to  se- 
cure the  bond  now  in  suit,  and  that  if  the  plaintiff  recovered,  there  would  probably 
be  no  assets  to  pay  the  judgment  of  tiio  bank;  but  if  the  defendant  succeeded 
in  this  action,  the  judgment  would  probably  be  paid  out  of  the  estate;  Held,  that 
tho  witness  was  competent,  because  no  liability  could  be  created  by  the  verdict; 
and  as  to  the  insolvency  of  the  estate,  no  issue  could  be  made  to  try  that  fact  in 
this  collateral  way.  "He  may  never  pay  the  debt,  and  until  he  does,  he  cannot 
be  said  to  be  a  creditor.  He  consequently,  was,  not  answering  to  increase  a  fund, 
out  of  which  he  is  to  be  remunerated.  Many  things  may  occur  to  prevent  his  pay- 
ing the  debt,  for  which  he  is  liable.  It  is  a  mere  liability,  and  very  far  from  that 
certain,  direct,  and  immediate  interest,  which  excludes  a  witness." 

In  Hart  v.  Deamer.  6  Wend.  497,  it  was  held  that  a  creditor  of  the  obligor, 
where  defence  was  lunacy,  was  competent  to  testify. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  83 

He  cannot,  therefore,  give  evidence  to  deprive   the   bankrupt 
of  his  allowance.  (3) 

The  creditor  of  a  bankrupt  is  also  interested  in  supporting 
the  bankruptcy,  for  the  effect  of  the  bankruptcy  is  to  appropri- 
ate the  whole  estate  and  effects  of  the  bankrupt  towards  the 
immediate  satisfaction  of  his  creditors.  A  creditor  is,  there- 
fore, an  incompetent  witness  to  support  the  fiat,  and  it  is  im- 
material, whether  he  has  or  has  not  availed  himself  of  the 
right  of  proving  under  the  bankruptcy.  (4)  It  is  clear  that 
the  petitioning  creditor  is  incompetent  to  prove  the  fiat  regu- 
larly sued  out,  for  (independently  of  the  objection  which  ap- 
plies to  other  creditors)  he  gives  a  bond  to  the  Chancellor, 
conditioned  to  establish  the  fact,  upon  which  the  validity  of 
the  fiat  depends.  (5)  The  interest  of  other  creditors,  as  we 
shall  hereafter  see,  may  be  removed  by  a  release  to  the  as- 
signees ;  and  if  a  creditor  has  sold  his  debt,  or  agreed  to  sell 
it,  his  interest  will  be  extinguished.  (6)  The  cases  relative 
to  the  competency  of  a  bankrupt,  of  a  creditor  to  diminish  the 
fund,  and  of  a  creditor  to  reduce  the  amount  of  his  own  debt, 
or  to  defeat  *the  commission,  will  be  stated  when  we  come  [  *91  ] 
to  examine,  in  what  particular  cases  a  witness  will  not  be 
disqualified  by  interest.(l) 

The  next  class  of  cases  which  we  shall  proceed  to  notice,  interest  in 
are  those  in  which  witnesses  have  been  rejected  on  the  ground  '^°'*" 
of  interest  in  actions  relative  to  real  property. 

It  has  been  seen,  that  in  an  action  of  ejectment,  a  tenant  Tenant  in 
in  possession  is  incompetent   for  the  defendant,    by  reason  of  fn°ejecT°" 
an  immediate  interest  in  the  event  of  the  suit ;  (2)  (6)  for  the  mem.  (a) 
verdict  and  judgment  in  the  action  would  have  the  effect  of 
turning  him  out  of  possession  immediately.  (3)     So  also,  if  a 

(3)  S.  C.  (5)  Green  v.  Jones,  2  Campb.  411. 

(4)  Adams  r.  Malkin,  3  Campb.  513.  {6)  See  post.  And  Granger  u.  Far- 
€rooke  r.  Edwards,  2  Stark.  303,  over-  long,  2  Bl.  R.  1273.  Heath  t).  Hall,  4 
Toling   Williams  v.   Stevens,  2   Campb.  Taunt.  326. 

301,   and   see  1   Rose,    292,   n.      Ex         (1)     See  post. 

jiarfe  Malkin,  2   Rose,  27.     Ex  parte         (2)     ^nfe,  p.  78. 

■Osbourne,  2  V.  &  B.  177.  (3)     6  Bing.  394.     5  Taunt.  1S3. 

(a)  But  it  has  been  held  that  a  tenant  in  possession  is  a  competent  witness  in  an 
action  involving  the  title.  12  Wend.  105. 

(6)  In  Lodge  v.  Patterson,  3  Watts  74,  which  was  ejectment,  the  defendants  L. 
and  L.  entered  on  the  record  the  plea  of  not  guilty ;  and  moreover,  that  they  took 
defence  for  four  undivided  seventli  parts  of  two  hundred  acres,  being  the  shares  of 
Andrew  Patterson  and  three  others,  heirs  of  John  Patterson,  deceased,  who  owned 
and  died  seized  thereof.  They  ofTercd  Nathan  Patterson,  a  son  of  Andrew  Patter- 
son, as  a  witness  in  their  behalf.  The  defendants  having  set  up  the  title  of  John 
Patterson's  heirs  by  way  of  defence  against  the  plaintifl''3  claim,  the  question  trying 
in  this  ejectment  was,  whether  the  right  of  the  plaintilF's,  who  are  the  heirs  of  Na- 
than Patterson,  or  of  the  heirs  of  John  Patterson,  was  better.  If  the  defendants 
succeeded,  the  witness's  title  was  found  by  the  verdict,  and  he  could  call  on  the  de- 
fendants to  attorn  to  him,  or  commence  an  action  to  recover  possession. 

In  soch  action  the  proceeding  here  would  be  evidence  for  the  purpose  of  proving, 
that  the  defendants  asserted  the  defendant's  title  to  be  the  best. 


84 


Of  the  Rule  of  Interest  to 


[Ch.  7. 


Remainder 
man. 


Agreement  plaintifT  agree  with  a  witness,  that,  in  case  he  recovers  the 
or  ease.  |j^,^jg^  j^g  ^\[\  ax^\\\  the  witncss  a  Icasc  of  them  for  so  many 
years,  this  exchidcs  his  evidence  ;  for  he  would  have  a  fixed 
and  certain  advantage  by  the  event  of  the  verdict.  (4)  Upon 
the  same  principle,  a  witness  has  been  rejected,  who,  if  the 
plaintiff  failed  in  the  action,  was  to  repay  a  sum  of  money  in 
his  hands  belonging  to  the  plaintilf,  but  was  not  to  repay  any 
part  of  it,  if  the  plaintiff  succeeded.  (5) 

In  ejectment  brought  by  a  tenant  in  tail  to  try  the  validity 
of  a  common  recovery  suffered  of  the  lands  in  dispute,  a  re- 
mainder man,  after  the  tenant  in  tail,  is  incompetent  to  give 
evidence  for  the  latter ;  for  by  recovering  in  the  ejectment, 
the  tenant  in  tail  would  be  in  as  of  his  former  right,  and  the 
witness  would  thereupon  acquire  a  vested  interest  in  the  re- 
mainder in  tail.  As  the  effect,  therefore,  of  the  verdict  would 
be  to  revest  the  remainder  in  the  witness,  he  has  a  direct  and 
immediate  interest  which  renders  him  incompetent.  (6)  So 
also  in  a  quare  impedit  respecting  the  right  of  presentation  to 
an  advowson,  which  was  claimed  by  the  defendant  through 
his  *mother,  it  was  held,  that  the  father  of  the  defendant, 
who  was  tenant  by  the  curtesy  of  the  mother's  property,  was 
an  incompetent  witness  on  the  defendant's  behalf,  on  the 
ground  that  he  had  a  direct  interest  in  the  result  of  the 
cause. (l)(a)  So  also,  a  devisee,  who  takes  under  a  will  a  ves- 
ted interest  in  the  testator's  estate,  has  been  considered  incom- 
petent to  support  the  will  in  an  action  of  ejectment  brought  by 
another  devisee  against  the  heir.  (2)  The  ground  of  these  ca- 
ses does  not,  however,  operate  to  prevent  an  executor,  taking 
a  pecuniary  interest  under  a  will,  from  giving  evidence  to  sup- 
port the  will  in  an  action  of  ejectment  brought  by  the  heir  at 
law  ;  for  the  verdict  against  the  plaintiff  would  only  have  the 
effect  of  establishing  the  will  as  to  the  real  property,  and  the 
witness  would  have  no  immediate  interest  in  the  termination 
of  that  suit ;  and  even  before  the  stat.  3  &  4  W.  4,  c.  42,  a 
witness  so  situated  was  not  disqualified  by  reason  of  any  indi- 
rect interest  in  the  record,  since  the  judgment  would  not  be 
evidence  in  the  Ecclesiastical  Court  upon  a  question,  whether 


Tenant  by 
curtesy. 


[*92] 


Executor* 


(4)  Gilb.  Evid.  108. 

(5)  Fotlieringliam  v.  Greenwood,  1 
Stra.  129. 

(6)  Doe  15  Tyler,  6  Bing.  390. 
Smith  V.  Blackham,  1  Salk.  283.  And 
See  per  Lee,  C.  J.,  Commins,  v.  The 
Mayor  of  OaUhampton,  Sayer,  45- 

(1)  Gully  «.  The  Bishop  of  Exeter 
and  another,  5  Bing.  171. 


(2)  See  Pyke  v.  Crouch,  1  Lord 
Raym.  730,  where  one  of  the  points 
resolved  was,  that  a  legatee  is  incom- 
petent to  prove  a  will.  In  Helliard  v. 
Jennings,  1  Lord  Raym.  505,  on  an  is- 
sue of  devisavit  vel  non,  it  was  assumed 
as  a  clear  proposition  that  a  devisee  was 
not  competent. 


(a)  In  Jackson  i\  Brooks,  8  Wend.  426,  which  was  ejectment  sued  by  the  heir 
at  law,  a  tenant  by  the  curtesy  was  admitted  to  testify  for  the  plaintiff.  And  the 
case  of  Bennett  v.  Hethington,  16  S.  and  R.  193,  decides  that  a  tenant  is  a  com- 
petent witness  for  his  co-tenant  in  an  action  of  ejectment  by  the  latter. 


Ch.  7.]  Persons  not  Parties  to  tJie  Suit.  85 

the  will  were  good  as  to  the   personalty,  (3)  (a)       Upon  the 
same  principles,  a  legatee  of  personal  estate   seems    also  to  be  f'^g^ce. 
competent  in  such  a  case.   An  heir  apparent  is  also  competent      .^ 
upon  any  question  concerning  the  lands,  for  the  heirship  is  no 
interest,  but  a  mere  contingency.  (4)  {h) 

It  may  also  be  observed  here,    that  a  claim  to  an  estate  or  Party  mii- 
interest  in  land,  on  the  part  of  a  witness  in  an  action  of  eject-  .jl^we" 
merit,    will  not  in  all  cases   disqualify.     Thus  in  the   recent 
case  of  Doe  v.  Maisey,  (5)  which  was  an  ejectment  brought 
to  recover  premises  which  the   defendant  claimed  as  heir  at 
law  to   his  father,  the  defendant's   mother  was  tendered  as  a 
witness  for  him,  and  was  objected  to  on  the  ground,  that  her 
evidence  would  tend  to  establish  for  her  a  title  to  dower ;  but 
the  Court  of  King's  Bench,  after  time  taken  to  consider,  held, 
that  she  had  *no  legal  interest   in  the  event  of  the   suit,  and    [  *93  ] 
was  competent.    Lord  Tenterden,  in  delivering  the  judgment 
of  the  Court,  said  that  the   judgment  in  the   action  would  be 
no  evidence  of  her  husband's  seisin  ;  and  that  if  he  was  seised, 
she  was  entitled  to  dower,  whether  the  premises  were   in  the 
hands  of  the  lessee  of  the  plaintiff  or  of  the  defendant.  (1) 

We  have  seen,  in  actions  by  or  against  corporations  respec-  J^orpo"- 
ting  the  lands  of  the  corporation,  that  individual  members  are  est  in  land, 
incompetent,  when  they  have  an  interest  as  members  of  the 
corporation  in  the  lands  which  are  the  subject  of  the  action. 
So  also,  in  an  action  of  trespass  brought  by  the  tenant  of  a 
corporation,  in  which  a  question  arose  respecting  the  right  of 
the  corporation  to  inclose  the  locus  in  quo,  against  the  defen- 

(3)  Doe  V.  Teage,  5  B.  &  C.  335.  (1)  Ibid.  440.     It   would  seem    that 

(4)  See  the  following  section.  the   widow  assisted    her  case  for    dower 

(5)  1  Barn.  &  Ad.  439.     See  Gully  by  her  evideuce. 
«.  Bishop  of  Exeter,  and  Doe  r.   Tyler, 

supra.     (See   4   J.   R.  230  and   5  id. 

158).  • 

(a)  In  Durand  v.  Starr,  11  Mass.  527,  it  was  held,  that  an  executor  named  in  the 
will  could  not  be  admitted  as  a  witness  to  establish  the  sanity  of  the  testator,  al- 
though a  mere  trustee  having  no  interest  in  any  devise  or  legacy.  See  7  Mass.  398 
and  12  id.  358. 

{b)Co-h€ir  is  admissible  as  a  witness;  for  the  estates  of  tenants  in  common  are  sev- 
eral, and  consequently,  each  recovers  his  own  purpart: — and  where  not  a  party  to 
the  record,  even  if  his  evidence  goes  to  prejudice  his  in  another  action,  he  may  be 
compelled  to  testify.  Gibson,  J.  in  7  S.  &  R.  192.  But  where  the  co-heir  is  di- 
rectly interested  in  the  facts  he  is  called  to  establish;  as  where  one  of  the  children 
and  co-heirs  of  the  plaintiff  was  offered  to  prove  the  facts  in  regard  to  a  trust  fund 
which  was  created  for  the  benefit  of  all  the  heirs: — Story,  J.  observed, 

"It  approaches  very  near  to  the  case  of  one  devisee  on  a  trial  of  ejectment  brought 
by  another  devisee  against  the  heir  at  law,  offered  as  a  witness  to  prove  the  testa- 
tor's sanity;  and  in  such  case  he  has  been  held  to  be  incompetent,  although  the 
verdict  would  not  have  been  evidence  for  or  against  him,  for  he  has  a  direct  and 
immediate  interest  in  establishing  the  facts."     West  v.  Randall,  2  Mason,  181. 

It  has  been  held  also  that  an  heir  is  not  admitted  to  be  a  witness  where  the  action 
was  sued  by  the  administrator  of  the  ancestor,  unless  he  releases  his  right  t»  a  share 
of  what  may  be  recovered.     Boynton  v.  Turner,  13  Mass.  391. 


86  Of  the  Rule  of  Interest  to  [Ch.  7. 

dant  who  claimed  aright  of  common  thereon,  freemen  of  the 
corporation  were  held  incompetent  for  the  i)hiintiff,  to  prove 
that  there  was  a  snfficicncy  of  common  left,  although  the  rent 
was  nominally  reserved  to  the  mayor  and  bailiffs  alone.  (2)  It 
was  objected  in  this  case,  that  if  any  interest  existed  in  the 
witness,  it  was  too  minute  to  form  a  ground  of  incompetency, 
and  it  is  obvious,  that  the  same  objection  might  be  raised  in 
most  cases  of  a  similar  description,  and  in  many  of  those  which 
have  been  before  stated  in  the  text ;  but  the  principle  was  ful- 
ly settled  by  that  case,  and  has  ever  since  been  adhered  to, 
that  if  there  beany  amount  of  interest,  the  objection  must  pre- 
vail, however  small  it  may  be  in  reality.  And  in  an  action 
against  officers  of  a  corporation,  members  of  the  corporation 
have  been  held  not  competent  witnesses  on  the  part  of  the  de- 
fendant, in  proof  of  a  custom  to  exclude  strangers  from  tra- 
ding, part  of  a  penalty,  imposed  by  a  bye-law  made  to  enforce 
such  custom,  going  to  the  corporation.  (3) 
Charg«  nn  On  the  trial  of  an  issue,  whether  the  owners  of  property 
'^"'^'  within  a  particular  district  are  liable  by  immemorial  usage  to 

[  *94  ]  *the  charge  of  repairing  a  chapel,  an  owner  of  property  with- 
in the  district  was  held  incompetent  to  disprove  the  liability, 
(although  he  neither  resided  nor  was  rated  in  the  district,) 
having  leased  his  property  to  a  tenant  who  was  bound  to  pay 
the  rent  without  deduction  :  the  owner  was  immediately  in- 
terested in  removing  such  a  permanent  charge,  and  thus  to 
improve  the  value  of  his  estate.  (1)  In  a  subsequent  case_, 
upon  an  issue  whether  a  messuage  was  situated  within  a  chap- 
elry,  it  was  determined  that  an  occupier  of  property  within 
Raieabie  the  district,  who  was  not  actually  rated,  was  competent  to 
prove,  that  it  was  so  situated  ;  and  although  the  decision  pro- 
ceeded chiefly  upon  the  operation  of  the  statute  of  the  54 
Geo.  3,  c.  170,  s.  9,  in  restoring  competency  in  such  cases, 
and  which  statute  will  be  partially  noticed  hereafter,  yet  the 
Court  expressed  an  opinion  that  as  the  witness  was  not  actu- 
ally rated,  but  only  rateable,  he  was  competent  at  common 
^abUa  t"(a\  ^^^"  (^)  ^  rated  inhabitant  of  a  parish  is  clearly  incompe- 
tent, on  the  general  principle,  to  give  evidence  for  the  defend- 
ant in  an  action  against  the  surveyor  of  the  highways,  in  sup- 
port of  a  custom  to  take  materials  from  the  sea  beach  for  the 

(2)  Burton  v.  Hinde,  5  T.  R.  174.  Aid.  87.     See;?os<  C.  as  to  the  eflect  of 

(3)  Davis  u.  Morgan,  1    Tyrwh.  457.  the  rale  by  statute  54  Geo.  3,  c,  170,  s. 
The  law  respecting  customs  of  exclusive  9,  upon  questions  of  this  description, 
trading   has  since   been  altered.      (See  (2)  Marsden  v.  Stanfield,   7  B.  &  C 
Boston  t).  Tiieston,  11   Mass.  468—13  815,818.    See  Rex  r.  Kirdford,  2  East, 
id.  324.)  559. 

(1)   Rhodes  v.  Ainsworth,   1   B.   & 

(a)  1  J.  R.  468;  11  id.  76;  12  id.  285,  where  it  was  held,  that  an  inhabitant 
liable  to  pay  or  actually  paying  taxes  was  admissible  as  a  witness.  See  also  1 
Bail.  R.  35. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  87 

purpose  of  repairing  the  road  ;  for  if  such  custom  were  estab- 
lished, the  highways  of  the  parish  would  be  repaired  at  little 
expense,  and  the  highway  rates  be  thereby  diminished.  (3) 
Nor  is  the  witness  rendered  competent  in  such  a  case  by  the 
statute  54  Geo.  3,  c.  170,  s.  9.  (4)  So  also  in  an  action  to 
recover  a  sum,  alleged  to  be  due  to  the  plaintiff  for  attending 
a  pauper,  against  an  overseer,  who  defends  on  the  part  of  the 
parish,  a  rated  inhabitant  is  an  incompetent  witness  for  the  de- 
fendant ;  (5)  for  if  the  plaintiff  recover  the  amount  claimed, 
it  would  be  a  charge  on  the  rates  ;  and  the  witness  is  not  ren- 
dered competent  by  the  above  mentioned  statute,  because  the 
question  in  the  action  is  not  "  a  *matter  of  rates  or  cesses  of  [  *95  ] 
the  parish,"  within  the  meaning  of  the  act  of  parliament.  (1) 

In  an  action  of  replevin,  a  party  under   whom  the  defend-  Replevin 

^1  .  '■       .       .       ^  1  .  .X-.  cognizance. 

ant  makes  cognizance  is,  in  general,  an  incompetent  witness 
for  the  defendant,  being  the  person  really  interested  in  the 
event  of  the  cause,  and  in  truth  the  substantial  defendant. 
And  in  a  case  where  there  were  two  cognizances,  one  under 
the  party  beneficially  interested,  and  the  other  under  a  trustee 
for  him  ;  the  evidence  of  the  latter  was  rejected,  notwithstand- 
ing the  absence  of  any  beneficial  interest  on  his  part  in  the 
premises.  (2)  In  the  case  of  Upton  v.  Curtis,  (3)  it  appears 
that  a  party,  under  whom  cognizance  was  made,  was  consid- 
ered incompetent  for  the  defendant,  although  that  particular 
cognizance  had  been  abandoned. 

But  it  has  been  settled  in  a  very  recent  case,   that   where  Present 
distinct  cognizances  are  made  under  different  parties,  who  do  ^^^' 
not  appear  to  be  in  any  manner   connected  in  interest,  if  one  D'stinci 
of  the  cognizances  be  abandoned  at  the  trial,  the  party,  under  ^^1''°'^*"'^' 
whom  it  is  made,  is  a  competent  witness  for  the  defendant.(4) 
Lord  Denman,  in  delivering  the  judgment  of  the  Court,  after 
observing  there  was   reason  to  suppose    that  the  facts  of  the 
case  of  Upton  v.  Curtis  were  not  reported  with  perfect  accu- 
racy, said,  the  Court  were  of  opinion,  that  the  offer  to  aban- 
don the  issue,   joined  on  the  cognizance  under  the  witness, 
was  tantamount  to  consenting  that  a  verdict  should  be  found 
for  the  plaintiff  on  that  issue.  (5) 

(3)  Oxenden  ?>.  Palrner,   2  B.  &  Ad.  the  defendant;  but  no  objection  seems  to 
236.     Per  Lord  Tenterden,  S.  C.  p.  242.  have  been  taken,  or    any  question  raised 

(4)  S.  C.  and  R.  r.  Bishop  Auckland,  as  to  her  competency.     Johnson  r.  Ma- 
1  Ad.  k.  Elk  744.    See  this  statute,  jiost,  son,  1  Esp.  N.  P.  C.  89. 

and  the  cases  in  which  it  restores  com-  (3)  I  Bing.  210. 

petcncy.  (4)  King  v.  Baker,  2  Ad.  &  EIJ,  333. 

(.5)  Tothill    V.  Hooper,    1  Mood.    &,  t5)  2  Ad.   &;    Kii.  339,   340.     In  the 

Rob.  N.  I'.  C.  392.  case  of  Hart   t^.    Horn,  2  Campb.  92,  it 

1)  fSee  the  words  of  the  act,  and  per  was  ruled  that  tiio  declarations  of  a  party                 > 

Lord  Tenterden,  2  Barn,  k  Ad.  243-4.  under  whom  cognizance  had  been  made, 

(2)  Golding  r.  Nias,   5  Esp.  N.  P.  C.  wore  inadmissible    in    evidence   for   the 

272.     In  a  prior  case,  it  appears  that  the  piainliff.     For  another  e.\amp!e  of  direct 

wife  of  a  party  under  whom   cognizance  interest,  see  Bland  v.  Ansley,  2  N.  R. 

vv»s  made,  was  admitted  as  a  witness  for  331. 


88  Of  the  Rule  of  Interest  to  [Ch  7. 


Liability  \^  [^  ^qw  proposcd  to  iiotice  an  important  class  of  cases,  in 

r  #Qg  1  *  which  witnesses  have  been  rejected  as  incompetent  to  give 
evidence  in  a  particular  suit,  on  account  of  their  liability  to  a 
subsequent  action  by  one  of  the  parties  to   that  suit. 

Thus,  in   the    case   of  actions  against  a  master   or   prin- 
cipal,    founded   on     the   alleged    misconduct    of  a   servant 
or  agent  of  the  defendant,  such    servant  or  agent  has   been 
generally    rejected    as  an    incompetent  witness   for    the  de- 
fendant   to   disprove  his  own  misconduct.       In    the  numer- 
ous   cases    of  this   nature,    which  occurred  before  the  pas- 
sing of  the  statute  3  &  4  W.  4,  c.  42,  the  rejection  of  the  wit- 
ness almost  always  proceeded  on  the  ground  of  an  indirect  in- 
terest in  the  record  with  reference  to  a  subsequent   suit :  for 
if  the  servant  or  agent  has  been  guilty  of  the  misconduct  im- 
})uted  to  him,   he  will  in  general  be  liable  to  make  good  all 
damages  sustaineti  by  the  master  or  employer  in  consequence 
of  such  misconduct,   and  may  be  compelled   by  the   latter, 
through  the  medium  of  an  action,  to  repay  any  damages  and 
costs  recovered  by  the  party  injured.     And  although  the  rec- 
ord of  the  first  action  would  not  be   evidence  in   the  second 
for  the  purpose  of  establishing  the  fact  of  the  misconduct  of 
the  witness,    yet  it  would  be  admissible   for  the  purpose   of 
shewing  the  quantum  of  damage  sustained  by  the   master  or 
employer  in  consequence  of  the  witness's  misconduct,    after 
the  fact  of  such   misconduct  had  been  proved  by  other  evi- 
dence. (1)     Now  it  has  been  seen,  that,  before  the  statute  of 
the  3  &  4  W.  3,  c.  42,  it  was  a  settled  general  rule,  that  a 
witness  was  incompetent  to  give  evidence  in  any  suit,   where 
the  record  of  the  proceedings  in  that  suit  would  be  evidence 
for  or  against  himself  in  a  subsequent  action  against  him  ;  and 
as  it  was  clear,    that  in  these   cases  the  defendant  in  the  first 
action  might  produce  the  record  thereof,  as  evidence  in  a  sub- 
sequent action  against  the  servant  or  agent,   the  latter  when 
tendered  as  a  witness  in  the  first  action,  has  generally  been 
rejected  upon  the  ground  of  this  indirect    interest  in  the  rec- 
ord.    Thus,  in  the  case  of  Green  v.  The  Neno  River  Compa- 
711/,  (2)  which  was  an  action  to  recover  damages  sustained  by 
the  plaintiff,  through  the  alleged  misconduct  of  a  servant  of 
the  defendants,  the  servant  was  held  an  incompetent  witness 
[  *97  ]   for  the  defendants,  to  disprove  *his  own  negligence.     It  was 
said  by  the  Court,  that  although  a  tradesman's  servant  is  per- 
mitted to  prove  the  delivery  of  goods  on  behalf  of  his  master, 
this  is  an  exception  to  the   general  rule,    proceeding  merely 
from  necessity  ;  (1)  and  that  this  exception  would  not  extend 
to  actions  arising  from  the  misconduct  of  coastmen  and  sail- 
ors, in  which  cases  the  verdict  against  the  proprietor  might  be 

(1)  4  T.  R.  589.  (1)  See  post  Ch.     Exceptions  as  to 

(2)  4  T.  R.  5S9.  the  rule  of  incompetency  from  interest. 


Ch.  7.J  Persons  not  Parties  to  the  t^idt.  89 

given  ill  evidence  in  a  subsequent  action  by  the  latter  against 
tiie  servant,  as  to  the  qiiantwm  of  damages^  thougli  not  as  to 
the  fact  of  the  injury  ;  and  so  in  the  case  then  before  the 
Court,  the  verdict  might  be  given  in  evidence  in  an  action  by 
the  defendants  against  the  witness,  and  therefore  he  was  in- 
competent without  a  release.  (2)  So  also  in  an  action  aj^ainst 
a  coach  proprietor  for  negligence  in  the  management  of  the 
coach,  the  guard,  who  appeared  to  be  implicated  in  the  alleg- 
ed mismanagement,  has  been  considered  incompetent,  without 
a  release.  (3)  In  an  action  against  the  captain  and  owner  of  a 
vessel  for  an  injury  occasioned  by  imputed  mismanagement  of 
the  vessel,  a  pilot,  who  had  the  control  of  the  vessel  at  the 
time,  has  been  also  considered  incompetent  to  give  evidence 
for  the  defendant.  (4) 

Upon  the  same  principle  it  has  been  ruled,  in  an  action  Broker, 
against  a  principal  for  misconduct  in  the  purchase  of  certain 
goods,  that  a  broker,  who  had  been  employed  by  the  defend- 
ant to  make  the  purchase,  was  incompetent  to  disprove  negli- 
gence in  the  transaction.  (5)  And  in  an  action  for  an  exces- 
sive distress,  the  broker,  who  made  the  distress,  has  been  con- 
sidered incompetent  to  prove  that  it  was  not  excessive. (6)  (a) 

In  like  manner,  in  an  action  against  a  sheriff  for  a  false  re-  ^'l*''"'''''*     ' 

oiTicer. 

turn,  the  sheriff's  officer,  who  has  given  security  for  the  due 
execution  of  process,  (and  is  consequently  liable  over  to  the 
sheriff  in  case  of  misconduct,)  has  been  adjudged  to  be  an  in- 

(2)  4  T.  R.  590.  p.  ."0.5. 

(3)  Wliitamoro  v.  Waterliouse,  4  (5)  Gevers  r.  "lainwnrinjr,  Holt,  139. 
Car.  &  P.  3S3.                                                '     (6)  Field  v.  JHlchell,  6  E.*p.  71. 

(4)  Hawkins  t).  Finlayson,  3  Car.  & 

(a)  See  M'Dowell  r.  Simpson,  3  Watts,  129,  where  it  was  held,  th-st  merely  be- 
cau^e  a  person  had  undeitiiken  to  {;ive  a  lease  as  agent  for  the  plaiiitili'ot'  the  land 
in  question,  to  the  defendants,  under  which  they  claimed  a  right  to  hold  possession 
of  it,  was  not  satlicient  to  rendor  him  incompetent. 

If  the  agent  of  the  plaintiifis  aulhoiised  to  receive  money  ;  and  he  gives  a  re- 
ceipt ill  fdll;  such  receipt  is  presumyilive  evidence  that  he  had  received  the  money; 
and  the  agent  is  incompetent  to  testify  by  reason  of  interest.  If  the  plainlilF  fails  in 
his  suit,  he  would  have  an  immediate  action  against  the  witness  for  money  had  and 
received.  If  the  plaintift" should  prevail,  the  defendant  would  have  no  iiciion  over 
against  the  witness,  to  recover  hack  the  money,  without  being  obliged  to  show  not 
oaly  that  he  had  paid  the  money  according  to  the  terms  of  the  receipt  of  the  mo-n- 
(!y,  but  also  that  tlie  witness  had  been  guilty  of  some  breach  of  trust,  towards  the 
parly  of  whom  the  money  h.id  been  received,  so  as  to  bring  the  ca'^e  within  the 
principle  of  Fowler  v.  Shearer,  7  Mass.  23;  ^ee  also  Fuller  v.  Wlieelock,  10  Pick, 
135.  In  Kuch  case,  liis  direct  interest  on  one  side  was  not  balanced  by  an  equal 
interest  on  the  other. 

rto,  where  the  agent  is  strongly  interested  in  the  rncovery  of  the  money  sued  for; 
as  where  the  goods  sold  were  consigned  to  him;  and  he  had  made  advances  on  ac- 
count of  them,  and  had  directed  the  suit  to  be  commenced;  Held,  that  he  was  not 
admissibie;^ — the  consignor  being  msolvent,  2  Pick.  240.  See  also  5  J.  R  2.58  and 
427;   I  iJall  G2;  2  i<J.  50. 

Upon  the  same  principle,  an  agent  to  sell  goods,  on  a  del  credere  commission, 
is  held  iiicoinpctuiU  to  lealify  in  au  action  to  recover  ilie  price  of  the  goods  sold.  U, 
Mass.  GO. 

12 


90 


Of  the  Rule  of  Interest  to 


[Ch.  7. 


Landlord 
receiving 
rent  from 
slierif}'. 


[  *0S  ]  competent  witness  *to  prove  the  correctness  of  the  return.  ( 1 ) 
Assistant,  jj^t  fj^  a  casc,  whcrc  in  an  action  of  this  nature,  an  objection 
was  made  to  the  competency  of  an  assistant  to  the  sheriff's  of- 
ficer, upon  the  ground,  that  although  the  witness  was  not  im- 
mediately liable  to  the  sheriff,  he  was  liable  to  his  own  em- 
ployer, the  officer,  and  that  in  an  action  against  the  officer  the 
sheriff  might  give  in  evidence  the  record  in  the  first  action, 
and  that  the  record  of  the  second  action  would  be  evidence 
for  the  officer  in  a  subsequent  action  against  the  witness, 
Lord  Tenterden  held,  that  this  circuity  of  interest  was  no  le- 
gal ground  of  exclusion.  He  observed,  that  the  rule  estab- 
lished and  acted  upon  was,  that,  in  order  to  exclude  a  person 
called  as  a  witness,  the  verdict  must  be  evidence  for  or  against 
him,  and  that  an  interest  beyond  this  was  too  remote  to  es- 
tablish incompetency.  (2)  However,  the  officer  himself  was 
rejected  by  the  same  learned  judge  as  incompetent  for  the 
sheriff',  even  where  he  had  received  an  indemnity  from  the 
execution  creditor,  and  had  not  employed  the  attorney  for  the 
defence  ;  on  the  ground,  that,  if  there  should  be  a  verdict 
against  the  sheriff,  the  liability  of  the  officer  would  be  certain, 
and  that  he  might  never  get  paid  on  his  indemnity.  (3)  («) 

It  has  also  been  decided,  in  an  action  against  the  sheriff  for 
a  false  return  to  afifa.,  which  stated  that  he  had  paid  a  sum 
of  money  to  the  landlord  of  the  premises  for  arrears  of  rent, 
that  the  landlord  is  incompetent  to  prove  the  rent  due ;  for  if 
the  action  were  to  succeed,  the  witness  would  be  liable  to  an 
action  at  the  suit  of  the  sheriff,  in  which  the  judgment  in  the 
former  action  would  be  evidence  of  special  damage.  (4)  In 
this  last  case,  it  will  be  observed,  the  witness  did  not  stand 
exactly  in  the  situation  of  an  agent  employed  by  the  defend- 
ant to  do  a  particular  act  and  misconducting  himself  in  the 
course  of  his  employment,  but  the  principle,  upon  which  he 
was  rejected,  was  the  same  as  in  the  preceding  cases,  namely, 
[  *99  J    *that  there  would  be  a  legal  liability  over  to  the  sheriff  arising 

(1)  Powell  V.  Hord,   2  Lord  Raym.         (3)  Whitehouse  v.   Atkinson,  3  Car. 
1411.     1  Stra.  650,  S.  C.  &  P.  N.  P.  C.  344. 

(2)  Clark  v.  Lucas,  Ry.  &  Mo.  N.  P.         (4)  Keighlley   v.   Birch,    3    Campb. 
C.  32.  521. 


(«)  The  deputy  is  never  admitted  in  an  action  against  the  sheriff  for  the  default 
of  the  former.  .Turner  r.  Austin,  16  Mass.  181;  Jewett  «.  Adams,  8  Greenl.  R. 
30.  His  competency,  however,  to  testify,  may  be  restored  by  a  release,  which  is 
a  perpetual  bar,  under  which  he  may  always  be  protected.  Without  a  release, 
the  deputy  is  diiectly  interested  in  the  result  of  the  cause;  and  if  the  verdict  be  for 
the  plaintitr,  the  judgment  rendered  thereon,  would  be  competent  evidence  in  sup- 
port of  an  action  sued  by  the  sheritT"  against  the  deputy,  on  his  official  bond.  id. 

Ho,  the  surety  to  the  sherilf's  bond  is  inadmissible  to  testify  in  an  action  of  tres- 
pass sued  against  the  sheriff'  for  levying  on  certain  property , which  the  plaintiff  claim- 
ed to  be  his.      1  Bail.  R.  568. 

See  the  case  of  Benjamin  v.  Smith,  12  Wend.  404,  as  to  the  inadmissibility  of 
an  execution  creditor  who  has  received  from  the  sheriff  the  proceeds  of  a  sale. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  91 

from  the  alleged  misconduct  of  the  witness  in  claiming  rent, 
which,  it  was  contended,  was  not  really  due  ;  and  in  a  subse- 
c|uent  action  by  the  sherifi"  against  the  witness,  the  record  of 
the  verdict  would  be  admissible  in  evidence  to  enforce  such 
liability. 

In  most,  if  not  in  all  the  cases  of  this  nature,  which  arose  Nature  of 
after  the  case  of  Green  v.  the  New  River  Cotnpcmy,  and  be-  |,','^ihcs"**' 
fore  the  passing  of  the  late  statute  of  the  3  &  4  W.  4,  c,  42,  cases, 
witnesses,  liable  over  to  the  defendant,  were  held  incompetent 
to  give  evidence  for  him,  for  the  reason  stated  by  the  court  in 
the  last-mentioned  case  :  namely,  that  the  verdict  might  be 
given  in  evidence  to  prove  the  quantum  of  damage,  in  a  sub- 
sequent action  against  the  witness.  This  was  a  sufficient 
ground  for  the  rejection  of  the  witness  before  the  statute  3  & 
4  W.  4,  c.  42 ;  but  the  26th  and  27th  sections  of  that  statute 
appear,  (as  we  have  already  observed),  to  have  produced  the 
effect  of  removing  all  objections  to  the  competency  of  wit- 
nesses, which  are  founded  on  an  indirect  interest  in  the  rec- 
ord, as  being  admissible  evidence  in  a  subsequent  action.  And 
it  therefore  becomes  material  to  ascertain,  whether,  in  the 
class  of  cases  now  under  consideration,  the  vv^itness  is  or  is  not 
liable  to  objection,  on  the  ground  of  a  direct  interest  in  the 
event  of  the  particular  suit. 

It  will  be  observed,  that  in  all  the  cases  which  have  been 
above  cited  and  referred  to,  the  witness  was  tendered  on  be- 
half of  the  defendant.  And  if  no  objection  to  his  competency 
could  have  been  made,  except  on  the  ground  of  the  subsequent 
use  of  the  verdict  as  evidence  against  him,    it  would  seem  to  , 

follow,  that  in  all  actions  of  a  similar  description,  a  servant, 
or  agent,  or  other  person  liable  over  to  the  plaintiff,  would  be 
a  competent  witness,  on  his  part,  to  prove  that  the  injury 
complained  of  arose  from  negligence  or  improper  conduct  on 
the  part  of  the  defendant  ;  because,  Avhatever  might  be  the 
result  of  the  action,  the  verdict  could  in  no  case  be  used  as  ev- 
idence for  or  against  such  witness  for  the  plaintiff  in  any  sub- 
sequent proceeding. 

It  has,   however,  been  decided  in  several   cases,  that  the 
^plaintiffs  servant  or  agent  is  equally  incompetent  to  give  ev-  [  *100  J 
idence  on  behalf  of  the  plaintiff,  as  the  defendant's  servant  or 
agent  is  to  give  evidence  on  behalf  of  the   defendant.     Thus, 
in  Miller  v.  Falconer,  (1)  which  was  an  action  against  the  de-  Servant  of 
fendant  for  negligently  running  against  the   plaintifTs   cart  incompe- ' 
with  a  dray,  the  plaintiff's  servant,  who  was  driving  the  cart, 
was  objected  to  as  incompetent,  on  the  ground  i\\:ii  prima  fa- 
cie he  was  himself  answerable  to  his  master,  and  that  he  was 
interested  in  fixing  the  liability  on  the  defendant,  and  the  ob- 
jection was  allowed  by  Lord  Ellenborough,    who  observed, 

(1)   1  Campb.  251. 


tent. 


9%  Of  the  Rule  of  Interest  to  [Ch.  7. 

that   the   witness  certainly  came  to  discharge  himself,    and 

therefore  was  incompetent  withont  a  release.     And  the   same 

point  was   snbse([nontly    decided   by  tlie    Court  of    Common 

imniediue    pjeas,  in  the  case  of  Morish  v.  Foote.  (2)     In  this  last  case  it 

interest,  ^     ' 

was  contended,  that  the  witness  was  competent,   because  no 
use  whatever  could  be  made  of  the  verdict  as  evidence  against 
him  in  a  subsequent  action ;  and  that  the  case  was   distin- 
guishable from  that  of  Green  v.  tlie  New  River  Company,  on 
the  ground,  that  there    the  witness  was  called  on  the   part  of 
the  defendant,  but   here   he  was   tendered  on  the  part  of  the 
plaintilf ;  however,  the  court  decided,    that  the  witness   was 
incompetent,  as  having  a  direct  interest  in  the  event  of  the 
snit ;  for  if  the  plaintiff  obtained  a  verdict,  the   Avitness  was 
placed  in  a  state  of  security.    In  giving  judgment  in  this  case, 
Gibbs,  C.  J.,  referred  to  and  recognised  a  prior  nisi  prius  de- 
cision, in  which   the  same   principle  had  been  acted  on  by 
of^'hip!L(a)  I'Ord  Kenyon.  (3)     In  the  latter  case  the   action  was  upon  a 
wheji  in-      policy  of  insurance  on  the  plaintiff's  goods,  and  the  right  to  re- 
conipeien .   ^^q^^j^.  depended  upon  the  question,  whether  the  ship  was  sea- 
worthy or  not.     In  order  to  prove  the  vessel  was  staunch,  the 
plaintiff  called  the  owner,  who  was  objected  to,  on  the  ground 
that  he  exonerated  himself  from  all  liability  by  fixing  the  de- 
fendant.     On  the  other  hand  it  was  contended,   that  it  had 
been  settled  by  the  case  of  Bent  v.  Baker,  that  a  witness  was 
competent  in  all  cases,  except  where  the  verdict  could  be  used 
as  evidence  for  or  against  him.     But   Lord   Kenyon    said,   it 
[  *101  ]  *\vas  held  in  Bent  v.  Baker,  that  a  witness  was  incompetent, 
,  not  only  in  cases  where  the  verdict  would  be  evidence  for  or 

against  him  in  another  suit,  but  also  where  he  was  directly 
interested  in  the  event  of  the  particular  suit ;  and  that  in  the 
case  then  before  him  the  witness  was  directly  interested  in 
procuring  a  verdict  for  the  plaintiff.  (1)  So  also  in  a  later  case 
Driver  of  it  was  rulcd  at  nisi  prius,  by  Best,  C.  J.,  that  in  an  action  for 
an  injury  to  a  stage  coach  by  a  cart,  the  coachman  was  an  in- 
competent witness  for  the  plaintiff  without  a  release  ;  (2)  and 
in  two  more  recent  cases  of  a  similar  nature    the  same  point 

(2)  Taunt.  434.     2  IMoore.  508.  give  evidence  on  the  question  of  devia- 

(3)  Rotlieio    V.    Elton,     Peai^e,    84.  tion. 
See   per  G'ibbs,    C.  i.,  8  Taunt.    457.  (1)  Peake,    85.       See    also    Fox  v. 
See  also   De   Synionds  v.  De  la  Cour,  2  Lushinglon,  ib.  S5,  n.  S   P. 
N.  R.  374,  in  an  action  on  policy  of  in-  (2)   Kerrison  v.  Coatswoith,   I    C.   & 
surance,  the   captain   is  incompetent  to  P.  645. 

(a)  See  post  p.  123  note  and  cases  there  cited. 

A,  a  common  carrier,  received  money  to  carry  and  deliver  to  B,  a  common  car- 
rier, for  liini  to  transmit  to  C,  the  owner,  C.  sues  A.  for  the  loss  of  the  money,  and 
after  A.  had  givcm  evidence  tending  to  prove  that  he  dctlivered  the  money  to  B, 
as  he  was  directed,  C.oileredB.  as  a  witness  to  prove  that  lie  did  not  receive 
the  money  :    Held,  that  he  was  not  admissible  without  a  release.     5  Verm.  R.  490. 


sia?e 
coacli 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  93 

has  been  ruled  by  Lord  Denman  and  Lord  Chief  Justice  Tin- 
dal.  (3)  (a) 

It  appears  to  be  established  by  these   cases,   that   where  a  ^^^^^'^  °'" 
witness  is  so  connected  with  the  question  in  dispute  in  a  par-  immediate 
ticular  action,  that  a  verdict  for  the  plaintiff  would  entirely  re-  ^"hen^'wii- 
lieve  the  witness  from  a  liability  over  to  a  subsequent  action  ness  called 
which  the  plaintilf  might  bring  against  him  if  the   defendant  ^°'^  p'^'""'^- 
were  to  succeed,  such  witness  will  be  incompetent  to  give  ev- 
idence on  behalf  of  the  plaintiff,  by  reason  of  a  direct  interest 
in  the  event  of  the  cause.     And  it  is  scarcely  necessary  to  ob-  ^^u  ^ 
serve,  that  if  there  be  this  direct  interest  with  regard  to  a  wit- 
ness liable  over  to  the  plaintiff,    the  same  species  of  interest 
must  exist  Avith  regard  to  a  person  who  may  be  liable  over  to 
the  defendant,  and  who  is  tendered  as  a  witness  on  his  behalf. 
In  both  cases  a  verdict  in  favour  of  the  party  for  whom  the 
Avitness  is  called,  has,  in  general,  the  same  effect,  with  regard 
to  the   state  of  security  in  which  it  places    the   witness.  (4) 
And  in  the  case  of  a  witness  called  on  the  part  of  the  defend- 
ant, the  liability  is  generally  more  extensive,  than  in  the  case 
of  a  witness  called  for  the  plaintiff ;  for  if  a  defendant  is  sued  ^"^'^' 
in  consequence  of  the  misconduct  of  some  person  who  is  liable 
over  to  him,  he  may  in  general  recover  ^against  such  person  L    ^^'^  J 
the  costs  of  the  action,  by  way  of  damages  ;  (1)  but  where  a 
plaintiff  brings  an  unfounded  action,    and  is  defeated  on  the 
ground  of  misconduct  on  the  part  of  his  own  agent,  or  other 
person  liable  over  to  him,   he  cannot  claim  the  costs  of  such 
action  as  a  necessary  consequence  of  the  act  or  misconduct  of 
the  party  so  liable  over  to  him.  (2) 

(3)  Wake  i'.  Lock,   5  Car.  Si  P.  451.  modation     bills,    post,    and    Lewis    v. 

Sherman  v.  Barnes,    1   Mou.  St  Kob.  N.  PeaUe,  7  Taunt.  153.     iS'eale  v.  Wylie, 

P.  C.  69.     In  botli  these  cases,   the  au-  3  B.  &  C.  533. 

thority  of  Morish   v.  Foote,  bupra,  was         (2)   See  per  Tindal,  C.  .1.,  1  Bing.  N. 

expressly  recognised.  C.  68S.     There  are  many  cases  in '.vhicli 

(■i)  There  may  be  some  cases  in  a  witness  is  so  situated,  that  he  may  lie 
which  a  witness,  called  for  the  defend-  liable  to  be  sued  by  eitiier  the  plaintilf  or 
ants,  will  not  be  jilaced  in  entire  security  defendant,  according  to  the  result  of  the 
by  a  favourable  verdict,  but  may  be  lia-  trial  ;  and  in  these  cases,  where  the  lia- 
ble himself  to  a  subsequent  action  at  tlie  bility  is  equal  on  both  sides,  the  witness 
suit  of  the  plaintiff".  These  cases,  how-  will  be  competent  ;  but  it  happens,  not 
ever,  can  be  but  few  in  number,  and  the  unfrcquently,  that  the  scale  is  lurned  by 
same  state  of  things  may  sometimes  oc-  a  preponderating  liability  to  the  defend- 
cur  with  regard  to  witnesses  called  for  ant  in  respect  of  the  costs  of  the  action, 
the  plaintiff.  Hee  2>ost. 

(1)   See  the  cases  relative  to  acconi- 

(o)  Seamen  are  not  admitted  as  witnesses  for  each  other,  if  the  question  be  the  loss 
of  tlie  ship — embezzlement  equally  allecting  the  whole  crew,  negligence,  misfeas- 
ance, or  malfeasance,  to  which  all  must  contribute  in  damages.  1  Pet.  K.  211;  1 
Mason,  101. 

But  at  common  law,  seamen  are  competent  witnesses  for  each  other,  although 
they  have  a  common  interest  in  the  point  in  contest.  Per  Kent,  C.  J.  3  J.  R. 
518. 

In  an  action  against  the  master  for  the  negligence  of  the  servant,  the   latter  is  not 


94  Of  the  Rule  of  Intcresl  to  [Ch.  7. 

oiiipr  cases       There  are  several  other  cases  remainina;  to  be   noticed,  in 
iftiiry  from  which  witncsscs  havc  been  rejected  as  incompetent,  on  the 
ovcr'''^       ground  of  an  interest  arising  from  a  liability  over  to  one  of  the 
])arties  to  the  suit ;  in  some  of  which  cases  the  interest  is  suf- 
ficiently clear,  but  in  others  its  precise  nature  and  extent  are 
not  easily  discoverable  ;  neither,  indeed,  is  it  very  easy  to  re- 
concile some  of  them  with  the  princii)les  upon  which  the  courts 
have  acted  in  deciding  others. 
Saieofiand      In  au  actiou  betwccn  the  vendor  and  purchaser  of  an  estate, 

— vendor        •  i   •    i       i  •   ,  ,  .  • 

with  war-  in  Winch  the  title  to  the  estate  comes  in  question,  a  person 
ranty.  (a)  ^,jY\o  had  prcviously  sold  the  estate,  and  is  liable  to  the  ven- 
dor, if  the  title  should  prove  defective,  is  incompetent  to  give 
evidence  in  support  of  the  title.  (3)  But  if  the  former  vendor 
sold  the  estate  without  any  covenant  for  good  title  or  warran- 
ty, he  will  be  competent;  (4)  for  in  this  case  the  witness  is 
under  no  liability, 
f  ^'*^i  tl  ^^  ^^^^  been  decided,  that  if  the  buyer  of  a  horse  warranted 

vendor  of    rc-scll  him  with  a  warrant}'",  and  upon  being  sued  offers  the 
iiorse  vviih  defence  of  the  action  to  the   person  from  whom   he   bought, 

warranty.  i  i  •  r.  i 

who  does  not  interfere,  he  may  recover  against  that  person 
the  costs  of  the  action,  as  part  of  the  damage  occasioned  by 
the  breach  of  warranty.  (5)  In  the  case  of  Briggs  v.  Crick,  (6) 
[  *103  ]  *indeed,  it  is  said  to  have  been  ruled,  that  a  former  proprietor 
of  a  horse,  who  had  sold  with  a  warranty,  was  competent  to 
prove  the  soundness,  without  a  release :  and  in  a  later  case 
Lord  Tenterden  appears  to  have  ruled  to  the  same  effect.  (1) 
But  in  a  very  recent  case  at  nisi  prius,  in  which  the  same 
question  arose,  and  the  case  of  Bi^iggs  v.  Crick  was  cited,  in 
support  of  the  witness's  competency,  Mr.  Justice  Alderson 
was  of  opinion,  that  as  the  eflcct  of  a  verdict  would  be  to  re- 
lieve the  witness  from  an  action  at  the  suit  of  the   defendant, 

(3)  2  Roll.  Abr.  6S3.  (6)  5  Esp.  99. 

(4)  I^ushby    v.    Greenslade,    1    Stra.         (1)  Baldwin  v,   Dixon,   1  Mood.  & 
445.     (Post.  p.  120).  Rob.  59. 

(5)  Lewis  r.  Peake,  7  Taunt.  153. 


in  such  case,  a  competent  witness  witliout  a  release.  6  Vertn.  R.  373.  But  in  a 
prosecution  against  the  servant,  the  relation  of  master  and  servant  is  not  such  an  in- 
terest as  will  disqualify  the  master  from  testifying  for  tiie  servant.  Tiie  State  v. 
Aaron,  1  South.  R.  231. 

(a)  The  grantee  of  land,  which  had  been  previously  attached  in  an  action  against 
the  grantor,  conveyed  it  with  warranty ;  and  lield,l!iat  he  was  not  admissible  as  a  wit- 
ness. Pond  V.  Hartwell,  17  Pick.  267.  But  where  the  grantee  has  no  interest  in 
the  immediate  result  of  the  case,  nor  in  the  record,  he  is  a  legal  witness.  6  Conn. 
494.  Although  a  grantor  is  excluded  where  he  lias  given  a  warranty ;  yet  if  the 
warranty  be  special,  as  being  against  the  grantor,  or  those  claiming  under  hitn  or 
against  a  particular  person,  he  is  competent  to  testify  in  support  of  the  title  against 
any  one  not  claiming  under  him.  6  Binn.  500;  2  id.  lOS.  If  a  grantee  has  taken 
no  covenants,  and  the  title  fails,  he  is  without  a  remedy,  if  the  contract  be  fair  and 
without  fraud,     2  Edw.  Ch.  R.  43. 


Ch.  7.]  Persons  not  Parties  to  the  ^!^uit.  95 

to  whom  he  had  sold  and  warranted  the  horse,  he   was   in- 
competent to  give  evidence  on  defendant's  behalf.(2)  (a) 

In  the  case  of  Nix  v.  Cutting  (3)  it  Avas  decided,  in  an 
action  of  trover  for  a  horse  alleged  to  be  the  plaintiff's  proper- 
ty, that  a  witness  was  competent  to  prove,  on  the  part  of  the 
defendant,  an  agreement  between  the  plaintiff  and  the  witness, 
that  the  latter  should  take  the  horse  as  a  security  for  a  sum  of 
money  due  to  him  from  the  plaintiff,  and  should  sell  it  if  the 
money  were  not  repaid  on  a  day  certain,  and  that,  on  default 
of  payment,  the  witness  sold  the  horse  to  the  defendant :  an 
objection  was  taken  against  the  witness,  that  by  selling  the 
horse  he  had  warranted  it  to  the  defendant  to  be  his  property, 
to  whom  he  would  be  liable  over  if  the  plaintiff  succeeded  in 
the  action  ;  but  the  court  held,  that  this  was  not  a  sufficient 
objection,  and  said,  that  as  between  the  witness  and  the  plain- 
tiff, and  the  witness  and  the  defendant,  the  verdict  obtained 
upon  his  testimony  in  the  cause  would  be  of  no  avail.  (4)  So 
also  in  the  case  of  Ward  v.  Wilkinson,  (5)  it  was  decided  in  Witness  to 
an  action  of  trover  for  goods  in  the  defendant's  possession  erTv^n'""''' 
which  were  claimed  by  the  plaintiff,  that  a  witness  was  com-  himself,  (b) 
petent  to  prove  that  the  goods  belonged  to  him,  and  had  been 
fraudulently  obtained  from  him  by  the  plaintiff;  because  the 
verdict  could  not  be  evidence  for  or  against  the  witness  in  any 
subsequent  action  :  and  the  coupt  in  this  case  recognized  the 
decision  of  iVz.r  V.  Cutting.  (6)  But  it  does  not  appear,  that 
in  this  case  of  Ward  v.  Wilkinson  any  *question  arose  as  to  r  *104  1 
incompetency,  by  reason  of  a  liability  over  to  either  of  the  par- 
ties, for  the  witness  had  not  sold  the  goods  to  the  defendant, 
(as  in  the  former  case, )  but  was  called  to  prove  that  they  act- 
ually belonged  to  himself  at  the  time  of  the  trial. 

There  are  several  cases,  of  actions  on  bills  of  exchange,  in  A<-iions  on 
which  witnesses  have  been   rejected    as   incompetent,   from  change.^*" 

(2)  Biss    V.  Mountain,    1   Mood.    &         (5)  4B.  &Ald.  410. 

Rob.  302.  (6)   See  per  liolroyd,  J.,  4  B.  &  Aid. 

(3)  Taunt.  18.  412,  413. 

(4)  4  Taunt.  20. 

(a)  A  vendor  of  personal  property  is  in  law  a  warrantor  of  the  title,  and  conse- 
quently is  not  admissible  as  a  competent  witness  lor  tire  vendee.  Hale  v.  Hniitli, 
6  (jreenl.  416.  However,  if  his  interest  is  balanced,  he  is  admissible.  3  I-'airf. 
371. 

(b)  An  agent  who  has  sold  personal  property  belonging  to  his  principal  is  not  com- 
petent to  testify  for  the  vendee,  that  he  was  not  agent,  and  that  the  property  wag 
sold  on  his  own  account,  and  thereby  to  establish  the  sale.  Harwood  v.  ftlurphy, 
Hals.  21.5.     See  6  J.  R.  .5. 

An  agent  for  the  plaintilTto  sell  goods  on  a  del  credere  commission,  is  not  a 
competent  witness  in  an  action  to  recover  the  price  of  goods  sold;  and  a  release 
would  not  restore  his  competency,  because  he  is  to  establish  a  bargain  made,  not 
only  in  his  own  name,  but  for  himself.    11  Mass.   (iO. 

An  agent  for  a  corporation  who  has  signed  a  promissory  note  as  such,  cannot  bo 
admitted  to  testify  against  the  validity  of  the  note  in  an  action  by  the  indorsee.  17 
Mass.  122. 


96  Of  the  Rule  of  Interest  to  [Ch.  7. 

being   liable   over  to  one  of  the  parties  to  the  suit.       The 
general    rule  is,   that,  in  actions  brought  against   parties  to 
such  negotiable  instruments,  other  ])arties  to  the  bills  are  com- 
petent to  give  evidence,  either  for  the  plaintilF  or  defendant  ; 
and  their  competency  depends  upon  the  principle  already  ad- 
verted to,  which  will  be  more  particularly  noticed,  in  the  en- 
Liahiiity  to  suing  chapter,  uauiely,  an  cqual  liability  on  either  side, (a)  But 
commniia-    au  excoptiou  to  lliis  rule    prevails  in  the  case  of  actions  on  ac- 
lioii  bills,     connnodation  bills,  in  which  the  party,  for  whose  accommoda- 
tion the  defendant  has  put  his  name  to  the  bill,  is  incompetent 
to  give  evidence  to  defeat  the   plaintiff,  upon  the  ground  that 
the  witness  will  be  liable   over  to  the  defendant,  not  merely 
for  the  amount  of  the  bill,  but  also  for  the  costs  of  the  action. 
Jones  V.      Thus  lu  Jouos  V.  Bvookc,  (1)  a  leading  authority  on  this  sub- 
DmwJr  in-  ject,  iu  an  action  against  a  party  who  had  accepted  a  bill  for 
compeient    ^^^  drawer's  accommodation,  it  was  held,  that  the  drawer  was 
niodaiion     iucompctent,  on  the  part  of  the  defendant,  to  prove  that  the 
acceptor.      plaintitF  held  the  bill  on  an  usurious  consideration.     It  was  ar- 
gued in  this  case,  that   the  drawer  was  indifferent,  as  having 
an  equal  liability  on  either  side  ;  for  if  the  defendant  succeed- 
ed, the  witness  would  be   liable    to  the  plaintiff  (the  holder,) 
and  if  the  plaintiff  succeeded,  the   witness  would  be  liable  to 
the  defendant,  who  had  accepted  the  bill  for  his  benefit.     But 
the  Court  said,   that  the    witness  had  an  interest  to   protect 
the  acceptor,  to  whom  he   would  be  liable,  not  only  for  the 
amount  of  the  bill,  but  also  for  all  damages  which  the  accep- 
tor, might  sustain  by  being  sued  for  it :  the  drawer  of  an  ac- 
commodation bill   being    bound  to   indemnify  the   acceptor 
against  the  consequences  of  an  acceptance  made  for  his  accom- 
.  modation.     So  also  it  has  been  ruled  at  nisi  prius,  that  in  an 

(lation  en-  actioii  by  the  indorsee  against  an  accommodation  indorser  of 
r°^''in''  1  '^  ^^^^'  "^  witness  who  was  indebted  *to  the  plaintiff,  and  for 
'■  ■'  whose  accommodation  the    defendant    endorsed  the  bill  as  a 

(1)4   Taunt.    463.      Hardwicke  v.  Blanchard,  Gow.  113,  S.  P. 

(fl)  See  note  p.  41  ante,  and  see  Lane  r.  Padelford,  14  IMaine,  94,  where  it 
was  held,  that  parties  to  negotiable  paper  arc  not  admitted  lo  prove  it  originally 
void,  liut  that  principle  does  not  extend  to  an  action  between  the  original  parties. 
Fox  V.  \\  hitney,  16  .Mass.  IIS.  IVor  does  it  extend  to  facts  happening  after  its  ex- 
ecution. Thus,  in  Freeman's  Bank  i'.  Rollins,  13l\!aine,  202,  the  j)riiicipal  was 
admitted  as  a  witness  for  the  defendant  a  surety,  in  an  action  sued  by  the  payee,  to 
prove  subsequent  transactions,  by  which  the  surety  was  supposed  to  have  been  dis- 
charged. 

In  Baker  v.  Arnold,  1  Caines  R.  2.5S,  which  was  an  action  sued  by  the  endorsee 
against  the  maker,  the  endorser  was  admitted  to  prove  the  time  of  endorsement. 
The  Court  say: — "  The  testimony  of  the  endorser,  as  to  the  time  of  the  endorse- 
ment, does  not,  therefore,  as  ofcourse,  or  by  any  direct,  or  necessary  cnnicquence, 
atiect  the  validity  of  the  note,  or  violate  Iiis  pligiUed  faith  to  the  world."  Although 
a  party  to  negotiable  paper  is  inadmissible  as  a  witness,  to  show  it  void  at  the  time 
of  its  execution,  but  he  is  competent  to  testify  to  facts  subsequently  arising,  if  he 
stands  disinterested.  15  J.  R.  270;   10  id.  231. 


Ch.  7.]  Persons  not  Parlies  to  the  Suit.  97 

security  for  the  debt,  is  incompetent  to  defeat  the  plaintiff,  for 
he  is  liable  to  indemnify  the  defendant  against  the  costs  of 
the  action.  (1)(«) 

So  in  an  action  on  a  bill  of  exchanare  asrainst  the  drawer,  A^eniem- 

^         ^  i)l()\'ecl  lo 

where  the  question  was,  whether  the  bill,  as  the  defendant  .liscomu 
maintained,  had  been  delivered  by  one  A.  B.  to  the  iilaintiff,  •""•(*) 
to  be  discounted,  or  whether  it  had  been  delivered  in  payment 
for  goods  bought  by  A.  B.  of  the  witness.  Lord  Chief  Justice 
Gibbs  held,  that  A.  B.  .  was  not  a  competent  witness  for  the 
defendant,  to  prove  that  the  former  Avas  the  case  ;  for  if  the 
witness  had  received  the  bill  merely  to  get  it  discounted,  and 
instead  of  doing  so  had  pledged  it  for  his  own  debt,  he  would 
l;e  liable  for  the  costs  of  the  action,  as  special  damage  resulting 
from  his  breach  of  duty.  (2)  And  in  a  more  recent  case,  where 
the  action  Avas  brought  by  the  indorser  of  a  bill  against  the 
drawer,  and  a  question  arose,  whether  the  plaintilf  had  receiv- 
ed the  bill  from  the  acceptor  in  discharge  of  a  debt  due  from 
him,  or  v/hether,  as  the  defendant  alleged,  the  bill  had  been 
delivered  to  the  acceptor  that  he  might  get  it  discounted, 
which  acceptor  had  delivered  the  bill  to  the  plaintilf  on  con- 
dition that  the  latter  would  get  cash  for  it,  but  this  the  plaintiff 

(1)  Coltomly  15.  Wilson,  3  Stark.  14S.  bankruptcy   and   certificate.     Ashton  «• 

In  these  cases  there  13  a  liability  on  both  Longes,    Mo.    &    Ma.  N     P.    C.    127. 

sides,  but  the  liability  on  the  part  of  the  lias.sett  v.  Dodgin,  9  Ring.  653. 

defendant   preponderates.     The  compe-  (2)  Harman  v.  Lasbrey,   Holt,  N.  P. 

lency  of  the  witness  will  be  restored  by  C.  390. 

(a)  The  maker  of  a  promissory  note  is  not  a  witness  for  the  indorser  in  an  action 
against  him  by  the  holder,  when  it  appears  that  the  note  was  endorsed  for  accoin- 
modaiion  of  the  maker.  7  Cranch.  206;  16  J.  11.  70;  3  M'Cord,  78  note;  1  Uail, 
479. 

A  party  to  an  accommodation  note  who  is  not  interested  is  not  incompetent;  12 
Pick.  565:  Held,  that  he  was  competent  to  prove  that  it  was  an  accotntnodation 
note  ;  endorsed  by  defendant  for  tlio  benefit  of  one  L. — the  Court  saying,  that  the 
promissor  and  endorser  stood  in  tlie  relation  of  principal  and  surety,  and  were  com- 
petent witnesses  for  each  other. 

The  maker  of  a  note  is  not  competent  to  prove  that  it  was  an  accommodation 
note  endorsed  at  his  request  by  the  del'endant  who  was  the  endorser,  and  that  the 
plaintiff  the  endorsee  received  usurious  interest.  Hartford  Bank  v.  Barry,  17  Mass. 
94. 

(6)  The  testimony  of  a  person  who  has  an  interest  in  giving  it,  and  whose  interest 
consequently,  conflicts  with  his  duty,  cannot  be  received.  Thus,  defendant  pur- 
chased a  quantity  of  lime  of  the  plaiiiliii  through  the  agency  of  C.  S.  The  bill  was 
made  out  by  the  plaintitl' in  the  name  of  C  S.,  as  purchaser,  for  which  the  latter 
gave  the  piaintifl' his  draft  for  value  received.  The  lime  was  lost  by  the  peril.s  of 
the  sea;  in  action  by  the  seller  to  recover  the  price  the  lime  was  alleged  to  have 
been  delivered  to  one  C.  S.  on  the  defendant's  account;  the  question  being  upon  the 
admission  of  C  .S.  as  a  competent  witness,  to  testify  that,  in  making  the  purchase, 
he  acted  as  the  agent  of  the  defendant  : — Held,  that  he  was  not  admissible;  for  if 
the  plaintilf  do  not  recover  C.  S.  would  be  liable  as  drawer  of  the  bill;  he  was  di- 
rectly interested  to  support  the  action.  Hewitt  ?'.  f.overiiig,  3  Fairf.  R.  201.  So, 
in  Skiras  v.  Morris,  8  Cow.  R.  60,  it  was  held  that  the  a.ssumed  agent  of  anotlier 
borrowing  money  and  drawing  a  bill  for  the  amount  on  his  pretended  principal, 
was  not  a  competent  witness  for  the  leader i  the  bill  having  been  protested  for  non- 
acceptance. 

13 


98  Of  the  Rule  of  Interest  to  [Cli.  7. 

had  neglected  to  do,  it  was  decided,  that  the  acceptor  could 
not  be  examined  as  to  these  facts  on  the  part  of  the  defendant ; 
for  although  he  was  interested  as  to  the  amount  of  the  bill 
itself  (being  liable  on  both  sides),  yet  he  was  interested  fur- 
ther as  to  the  costs,  against  which  he  would  have  to  indemni- 
fy the  defendant,  if  the  plaintiff  got  a  verdict.  (3)  In  the  lat- 
ter of  these  cases  the  witness  was  a  party  to  the  bill,  and  in 
the  former  he  was  not  a  party,  and  in  neither  of  them  were 
the  circumstances  exactly  the  same  as  in  the  before-mention- 
ed cases  of  acconniiodation  bills  ;  but  the  principle  upon  which 

[  *106  ]  the  *witnesswas  rejected,  appears  to  be  the  same  in  all  these 
cases  ;  viz.  a  liability  to  indemnify  the  defendant  against  the 
costs  of  an  action,  to  which  he  had  been  subjected  through 
the  act  or  default  of  the  witness. 

Wiinpss  to       rp^  ^j^jg  principle  may  be  referred  the  late  case  of  Larhales- 

I)IO\'G|>t)V-  -*■  ^ 

niciit  I.)  "  tier  V.  Clark,  (1)  where  the  defence,  set  up  to  an  action  for 
\viien  com-  goods  sold  aud  delivered,  was,  that  a  third  person  had  bought 
pcieiit  for  the  goods  of  the  plaintiff  and  sold  them  to  the  defendant  on 
dcfeiuiant.    ^^[^  qwu  accouut,  and  had  been  paid  for  them  by  the  defend- 

Larbaleslier  ,  .  '  ,       -^  ,  .  •'  , 

V.  Clark,  aut,  and  such  person  was  tendered  as  a  witness  to  prove  these 
facts  on  the  defendant's  behalf.  The  Court  of  King's  Bench 
thought,  that  under  the  particular  circumstances  of  the  case 
the  witness  was  competent,  as  it  did  not  appear  that  he  had 
acted  in  the  transaction  in  such  a  manner  as  to  render  him- 
self liable  to  the  defendant  for  the  costs  of  the  action,  in  case 
the  plaintiff  obtained  a  verdict  ;  but  they  were  of  opinion, 
that  if  the  witness  had  appeared  to  have  acted  fraudulently 
in  the  matter,  so  as  to  incur  this  liability  to  costs,  he  would 
not  have  been  competent.  And  Mr.  Justice  Littledale  in  giv- 
ing judgment  says,  "  it  is  now  well  established,  that  a  person 
who  has  received  money  due  from  a  defendant  to  a  plaintiff, 
is  not  a  competent  witness  for  the  defendent,  to  prove  that  he 
received  the  money  as  agent  of  the  plaintiff,  or  in  his  own 
right,  if  his  conduct  has  been  such  that  he  would  be  liable, 
in  the  event  of  a  verdict  for  the  plaintiff,  to  pay  the  defen- 
dant, not  only  the  money  received,  but  also  the  costs  of  that 
action  in  which  the  plaintiff  should  recover  ;  since  in  such  a 
case  he  has  an  interest  in  defeating  the  action."  The  learn- 
ed Judge  added,  that  he  regretted  that  such  a  rule  had  been 
established,  because  in  many  cases,  it  was  extremely  difficult 
to  ascertain  whether  a  party  so  situated  would  be  liable  to 
costs.  And  Mr.  Justice  Taunton  observed,  in  the  same  case, 
that  he  had  understood  the  rule  of  evidence  as  stated  by  Mr. 
Justice  Littledale  to  be  well  established  ever  since  the  case  of 
Jones  V.  Brooke.  (2) 

(3)  Edmonds  v.  Lowe,  S  B.  &.  C.         (1)  1  Barn.  &  Ad.  899. 
407.  (2)  lb.  903. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  99 

In  some  cases  which  had  occured  prior  to  the  case  of  Jones  Cases  on  m- 

■l  rompetciicy 

V.  Brooke,  it  appears  to  have  been  considered,  that  where  the  from  Costs, 
witness  was  hable  on   both  sides,  his  competency  was  not  af-  J^^'^^j"^ '°  _ 
fected  *by  the  circumstance  of  a  greater  habihty  to  tlie  defen-  Brooke. 
dant  in  respect  of  the  costsof  the  action  ;(!)(«)  bat  the  contrary  [  *107  J 
appears  to  be  now  fuUy  estabhshed  by  the  authorities  cited  in 
the  text ;  and  we  have  already  seen,  that  on  this  very  ground 
of  a  habihty  to  costs,  a  co-obhgor  of  a  bond,  who  was  the 
principal  debtor,  was  considered  incompetent,  in  an  action  on 
the  bond  against  a  surety,  to  give  evidence  on  behalf  of  the 
defendant.     In  the  case  in  which  this  point  was  decided,  (2) 
Lord  Ellenborough  asked,  why  there  should  not  be  an  inter- 
est in  costs  as  well  as  on  any  other  account?     And  the  gener- 
al rule,  that  a  liability  on  the  part  of  a  witness  either  to  pay,  or 
contribute  to  the  costs,  of  a  cause  will  render  him  incompe- 
tent, appears  to  have  been  recognized  in  several  other  cases. 

Thus,  as  we  have  seen,  the  parties  to  the  suit,  who  have  ^/|j^|,^|-f!^ 
no  beneficial  interest,  are  incompetent,  upon  the  ground  of  a  to  costs. 
liability  to  costs.  (3)  In  an  action  by  an  infant  plaintiif,  his 
prochein  ami  and  guardian  are  not  competent  witnesses  for 
him,  on  the  ground  of  a  similar  liability.  (4)  So  in  most  ac- 
tions upon  contracts,  a  co-contractor  is  incompetent  to  give 
evidence  for  the  defendant,  being  interested  to  defeat  the  ac- 
tion, and  thereby  to  avoid  the  liability  of  contribution  to  the 
costs.  (5) 

But  in  a  recent  case  on  this  subject,  where  the  action  was  in  Liability 
tort,  being  for  a  libel  against  a  person  who  was  secretary  to  a  from  iFiegai 
society,  the  members  of  which  had  agreed  to  contribute  to-  *^""""aci. 
wards  all  law  expenses.  Lord  Tenterden  appears  to  have  con- 
sidered, that  a  member  of  the  society  was  competent  for  the 
defendant  without  a  release,  on  the  ground  that  a  contract  be- 
tween parties,  for  bearing  each  other  harmless  in  doing  wrong, 
was  void,  and  conseqently,  that  there  was  no  legal  liability  to 
affect  the  witness.    But  his  Lordship  observed,  that  if  the  wit- 
ness would  be  liable  for  a  share  of  the  expenses  in  the  event 
of  a  judgment  passing  against  the  defendant,  he  would  be  in- 
competent. (6) (i) 

(1)  Ilderton  «.  Atkinson,    7    T.  R.  Evid.  107.     Head  u.  Head,  3  Atlv.  511, 
48U.     I5irt  V.  Kershaw,  2  East,  450.  547. 

(2)  Townend  v.   Downing,  14  East,  (5)  Sec  cases  cited  ante,   p.  85,  and 
5G5,  supra,  p.  86.  see  Erencli  v.  Backliouse,  4  Burr.  2727. 

(3)  Jlnte.  (6)  Humpiirey   v.  Miller,  4  Car.  & 

(4)  James  t>.  Hatfield,   1   Stra.   548.  P.  7-12. 
Hopkins  v.  Neal,  2  Slra.   1026.     Gilb. 


(rt)  Scott  V.  M.  Sellon  2  Greenl.  204.     Sec  also,  16  .1.  R.  70. 

{b)  An  agreotrient  between  several  persons  lo  share  in  the  gain  or  loss  of  certain 
suits,  will  exclude  them  from  being  witnesses  for  each  other,  though  released,  o 
Whurt.  R.  369. 


100  Of  the  Rule  of  ^Interest  to  [Ch.  7. 

EfTeci  of         *it  i^ow  only  remains  to  notice  the  cases,  upon  the  subject 
&,  /w.  4,    of  incompetency  arising  from  a  liability  over  to  one  of  the  par- 
in  cases  of   jjgg  jq  ^\^q  g^^jt  which  liave  occurred  since  the  statute  3  &  4  W. 
from  a  lia     4,  c,  42,  camc  iuto  operation  ;  that  it  may  be  seen,  what  etfect 
r'*u?^^  ^'^^  provisions  of  tliis  statute  have  had  on  this  numerous  and 
L        ■"  -■  ratiier  dillicult  class  of  cases.     Before  we  enter  on  the  consid- 
eration of  these  cases,  it  will  be  convenient  to  advert  to  the 
precise  language  of  the  statute. 
Scciion  26.      The  2Gth  section  of  the  act  is  as  follows  :  "And  in  order 
to  render  the  rejection  of  witnesses  on  the  ground  of  interest 
less  frequent,  be  it  further  enacted.  That  if  any  witness  shall 
be  objected  to  as  incompetent,    on  the  ground  that  the  ver- 
dict or  judgment  in  the  action  on  which  it  shall    be  proposed 
to  examine  him,  would  be  admissible  in  evidence  for  or  against 
him,  such  witness  shall,   nevertheless,    be  examined,    but  in 
that  case,  a  verdict  or  judgment  in  that  action,  in  favour  of  the 
party  in  whose  behalf  he  shall  have  been  examined,  shall  not 
be  admissible  in  evidence   for  him,  or  any  one    claiming  un- 
der him,  nor  shall  a  verdict  or  judgment  against  the  party  on 
whose  behalf  he  shall  have  been  examined,  be  admissible  in 
evidence  against  him  or  any  one  claiming  under  him." 
Section  27.      By  the  27th  section,  it  is  further  enacted,   "  That  the  name 
of  every  witness  objected  to  as  incompetent,    on  the  ground 
that  such  verdict   or  judgment    would  be   admissible  in  evi- 
dence for  or  against  him,  shall,  at  the  trial,  be  indorsed  on  the 
record  or  document  on  which  the  trial  shall  be  had,  together 
with  the  name  of  the  party  on  whose  behalf  he  was  examin- 
ed, by  some  officer  of  the  Court,  at  the  request  of  either  par- 
ty, and  shall  be  afterwards  entered  on  the  record  of  the  judg- 
ment ;  and  such  indorsement  or  entry  shall  be  sufficient  evi- 
dence, that  such  witness   was  examined,  in   any  subsequent 
proceeding,  in  Avhich  the  verdict  or  judgment  shall  be  offered 
in  evidence." 

As  the  practice  under  this  recent  statute  is  not  completely 

settled,  it  is  proposed  to  state  the  several  decisions  in  order  as 

they  have  occurred,  and  afterwards  to  advert  to  the  different 

[  *109  ]  *  views  which  have  been  taken,  as  to  the  intentions  of  the 

legislature. 
Decisions—      In  one  of  the  earliest  cases  since  the  passing  of  the  statute, 
liabiTover    it  is  Said  to  liavc  been  ruled  by  Lord  Lyndhurst,   that  in   an 
to  the  de-     action  on  a  guarantee,    the  party  primarily  liable,   who  was 
jected.        tendered  as  a   witness  for  the  defendant,  and  objected  to  on 
the  ground  of  his  being   liable  to  indemnify  the    defendant 
against  the  costs,  was  not  rendered  competent  by  the  provis- 
ions of  the  statute.  (1)     So  also,  in  an  action  on  a  bill  of  ex- 
change,    accepted  by    the     defendant    for    the   accommo- 

(1)   Braitlnvait   v.   Coleman,    Ilertf.  Spring  Ass,  1S34.  2  Har.  Ind.  1047. 


Ch.  7.]  Persons  not  Parties  to  the  Suit.  101 

dation  of  the  drawer,  it  is  said  to  have  been  ruled  by 
the  same  learned  Judge,  that  the  witness  was  not  ren- 
dered competent  by  the  statute,  which  he  thought  was  not 
intended  to  apply  to  cases  of  this  nature,  (2)  And  in  a 
subsequent  case,  in  an  action  for  injuring  the  plaintiff's  house 
by  improperly  digging  a  cellar,  whereby  the  plaintiif  s  wall 
sunk,  the  person  employed  to  dig  the  cellar  by  the  defendant 
was  tendered  as  a  witness  on  his  behalf,  but  Mr.  Justice  Pat- 
terson is  reported  to  have  been  of  opinion,  that  the  witness 
was  not  rendered  competent  by  the  statute,  and  that  the  stat- 
tute  was  not  intended  to  apply  to  such  cases.  (3)  The  same 
learned  Judge  also  seems  to  have  ruled,  that  a  carrier's  servant 
was  incompetent  to  disprove  negligence  in  an  action  against 
his  master,  without  a  release.  (4) 

In  these  cases,  the  witness  was  tendered  on  the  part  of  the  Wimesses 
defendant ;  and  we  have  seen,  that  it  Avas  only  when  called  to  ihe  plain- 
by  the  defendant,  that  the  witness,  (before  the  passing  of  the  I'ff'ejecieci. 
statute,)  was  objected  to,  on  the  ground  of  the  admissibility 
of  the  verdict  as  evidence  against  him  in  a  subsequent  action. 
For,  in  all  cases,  where  witnesses,  called  by  the  plaintiff, 
have  been  rejected  in  consequence  of  a  liability  over  to  him, 
the  rejection  has  always  proceeded  on  the  ground  of  a  direct 
interest  in  the  event  of  the  suit.  (5)  In  a  late  case  before  Lord 
Denman,  (6)  *where,  in  an  action  for  an  injury  alleged  to  have  [  *110  ] 
been  done  to  the  plaintiffs  horse  by  the  negligent  driving  of 
the  defendant's  servant,  the  plaintiff  called  as  a  witness  on  his 
part  a  servant,  who  had  the  care  of  the  horse  at  the  time  of 
the  accident ;  the  servant  was  objected  to  as  incompetent 
without  a  release  ;  and  Lord  Denman  said,  that  it  was  so  de- 
cided in  the  case  of  Wake  v.  Lock,  (1)  which  he  had  consid- 
ered a  good  deal.  And  upon  the  statute  3  &  4  W.  4  c.  42,  be- 
ing relied  on  as  restoring  the  witnesses'  competency.  Lord 
Denman  appears  to  have  considered,  that  the  statute  did  not 
apply,  since  it  only  rendered  competent  those  persons  for  or 
against  whom  the  verdict  or  judgment  would  be  evidence  ; 
but  if  the  witness  should  state  what  he  was  expected  to  state, 
and  should  be  believed,  there  never  could  be  any  action 
against  him. 

In  a  still  later  case,  a  witness  called  for  the  plaintiff  was 
rejected  by  the  same  learned  judge,  on  the  same  ground  of  an 
immediate  interest  in  the  event  of  the  suit,  arising  from  a  li- 
abiUty  to  the  plaintifl",  which  would  be  removed  by  a  verdict 
in  the  plaintilPs  favour.      In  this  case  the  action  was  for  use 

(2)   Burgess  v.   Cuthill,  1    Mood.  &         (5)  See   Morisli   v.    Foote,  supra,  p. 

Rob.  315.  «  Car.  &  P.  282.  100,  and  other  cases. 

(3j  Mitchei   w.  Hunt,   6    Car.   &  P.         (6)  Harding  t).  Cobley,  6    Car.    &  P. 

351.  664. 

(4)  Harrington  v.   Ca3well,.6  Car.  &         (i)  Supra,  p.   101.     5  Car.   &  P. 

P.   352.  454. 


102 


Of  the  Rule  of  Interest  to 


[Ch.  7. 


Iminndialc 
inlerest  not 
wiihiii  (lie 
statiUe. 

[  *111  ] 


Late  case 
before 
Parke,  B. 
Drawer  of 
accommo- 
dalion  bill, 
held  com- 
petent. 


Observa- 
tions oil 
Faith  V. 
Mclnttjre. 


and  occupation,  and  in  order  to  show  that  the  defendant  had 
occupied  the  premises,  a  witness  was  called,  who  stated  that 
he  had  taken  the  premises  of  the  plaintilF,  and  had  not  hccn 
released  from  his  tenancy,  and  u])on  his  being  asked  whether 
he  had  not  given  up  the  premises  to  the  defendant,  it  was  ob- 
jected, that  he  was  interested  in  fixing  the  defendant,  and  up- 
on the  statute  being  referred  to  in  support  of  the  admissibility 
of  the  witness.  Lord  Denman  ruled,  that  the  witness  was  not 
competent,  on  the  ground  that  he  had  a  direct  interest  in  the 
event  of  the  suit ;  lor  if  the  plaintiff  succeeded  in  getting  the 
amount  he  claimed  from  the  defendant,  that  would  put  an 
end  to  his  claim  for  rent,  for  the  time  for  which  he  sought  to 
recover  it  in  the  action.  (2) 

In  all  these  cases  it  appears  to  have  been  considered,  that 
witnesses,  objectionable  on  the  ground  of  a  liability  *over  to 
either  of  the  parties  to  the  suit,  which  liability  would  be  re- 
moved by  a  favourable  verdict,  had  an  immediate  interest  in 
the  event  of  the  suit,  and  that  such  an  interest  was  not  remov- 
ed or  affected  by  the  provisions  of  the  statute.  (1)  But  in  a 
very  recent  case  before  Mr.  Baron  Parke,  that  learned  Judge 
ruled,  that  the  drawer  of  a  bill  was  a  competent  witness  for 
the  defendant,  in  an  action  against  a  person  who  had  accep- 
ted it  for  such  drawer's  accommodation.  It  was  stated  at  the 
trial,  that  Lord  Lyndhurst  had  ruled,  that  such  a  witness  was 
not  rendered  competent  by  the  3  &  4  W.  4  c.  42 ;  (2)  but  Mr. 
Baron  Parke  said,  he  thought,  that  by  indorsing  the  witness's 
name  on  the  postea,  according  to  the  27th  section,  the  witness 
would  be  rendered  competent,  for  he  could  only  be  made  lia- 
ble to  the  costs  of  that  action  by  means  of  the  verdict  or  judg- 
ment, which  in  consequence  of  the  indorsement  of  his  name 
could  not  be  used  against  him  ;  and  to  the  amount  of  the  bill 
he  was  liable  at  all  events.  The  witness's  evidence  was  ac- 
cordingly received,  and  the  defendant  obtained  a  verdict.  (3) 

In  cases  like  that  which  is  the  subject  of  the  last-mention- 
ed decision,  the  liability  to  costs  formed  the  only  ground  up- 
on which  the  witness  was  held  to  be  incompetent  before  the 
passing  of  the  statute,  (4)  aind  this  liability  appears  to  be  ef- 
fectually removed  in  the  manner  pointed  out  by  Mr.  Baron 
Parke.  By  the  act  of  calling  the  drawer  as  a  witness,  the  de- 
fendant precludes  himself  from  using  the  verdict  against  him 
in  a  subsequent  action  ;  and  as  the  costs  can  only  be  recover- 
ed by  means  of  the  record,  the  result  is  precisely  the  same,  as 


(2)  Ilodson  V.  Marshall,  7  Car.  &  P. 
16. 

(1)  Faith  V.  Mclntyre,  7  Car.  &  P.  44. 

(2)  Probably,  the  case  of  Burgess  v. 
Cuthell,  supra,  109.  The  name  of  the 
case  was  not  mentioned. 

(3)  A  rule  nisi  for  a  new  trial  was  af- 


terwards obtained,  but  not  as  it  seems  on 
the  ground  of  the  improper  admission  of 
the  witness,  and  the  rule  was  afterwards 
discharged,  7  Car.  &  P.  48,  n. 

(4)  See  Jones  u.  Brooke,  supra,  104, 
and  the  subsequent  cases  there  cited. 


oil.  7. J  Persons  not  Parties  to  ike  Suit.  103 

if  the  defendant  had  released  the  witness  from  the  costs.  It 
might,  however,  perhaps  be  urged  against  the  reception  of  the 
witness,  that  according  to  many  authorities,  an  interest  arising 
from  a  liabihty  over  to  one  of  the  parties  to  the  suit,  is  an  im- 
mediate interest  in  the  event  of  *the  suit :  and  that  the  Ian-  [  *112  ] 
guageof  the  statute  only  applies  to  cases  "in  which  any  wit- 
ness shall  be  objected  to  as  incompetent,  on  the  ground  that 
the  verdict  or  judgment  in  the  action  in  which'  it  is  proposed 
to  examine  him  would  be  admissible  in  evidence  for  or  against 
him."  If,  therefore,  the  witness  was  objected  to,  not  on  the 
ground  of  this  indirect  interest  in  the  record  referred  to  in  the 
statute,  but  upon  the  other  ground  of  a  direct  interest  in  the 
event  of  the  suit,  it  might  be  urged,  that  the  case  did  not  fall 
within  the  statute,  even  although  it  were  true  that  the  inter- 
est might  be  removed  in  the  manner  which  the  statute  pre- 
scribes. 

Some    difficulties  arise  from  the  application  of  the  princi-  Distinction 
pie  of  the  ruling,  in  Faith  v.  Mcliiiirc,  to  other  cases  of  wit-  ^hnessls 
nesses  objected  to  on  the  ground  of  a  liability  over  to  the  par-  ''^'''*'  °y^:^ 
ties  to  the  suit  or  either  of  them.       The  ground  upon  which  liff  and  u. 
the  vdtness  was  admitted  in  that  case  was,  as  we  have  seen,  "";  '^*''^"''' 

'  '  ant, 

that  the  liability  over  to  the  defendant  could  only  be  enforced 
by  means  of  the  record,  and  that  the  defendant,  by  calling  the 
witness,  precluded  himself  from  using  the  record  against  him. 
That  principle,  it  seems,  would  apply  to  all  cases  of  liability 
over  either  for  damages  or  costs  in  the  action,  Avhen  the  wit- 
ness is  called  for  the  defendant  ;  and  consequently,  in  all  ca- 
ses where  servants,  agents,  and  other  parties  liable  over,  are 
called  on  the  defendant's  part,  they  would  be  competent  with- 
out a  release.  But  when  such  witnesses  are  called  on  the 
part  of  the  plaintiff,  the  reasoning  would  not  apply,  for  if  the 
plaintiff  should  fail  in  the  action,  he  might  enforce  his  reme- 
dy over  against  such  witnesses  without  producing  the  record, 
which  indeed  would  not  be  admissible  evidence  against  the 
witness  for  any  purpose  ;  and,  therefore,  all  snch  witnesses 
would  be  incompetent  for  the  plaintiff  without  a  release. 

No  doubt  or  difficulty  can  arise  with  regard  to  the  applica- 
tion of  the  statute  to  that  class  of  cases,  in  which  witnesses 
were  formerly  rejected  as  incompetent,  not  from  direct  inter- 
est in  the  event  of  the  suit,  or  from  liability  over  to  either  of 
the  parties,  consequent  upon  the  event  of  the  suit,  but  solely 
on  the  ground  that  a  verdict  for  or  against  some  *general  right  [  *113  ] 
or  custom,  would  be  admissible  in  evidence  for  or  against  the 
witness,  as  evidence  of  the  fact  decided  in  the  first  action.  In 
all  such  cases,  the  competency  of  the  witness  would  be  re- 
stored by  the  statute,  and  the  question  of  his  competency 
would  in  no  manner  be  affected  by  the  accident  of  his  being 
called  for  the  plaintiff,  or  for  the  defendant.     There   is  a  ma- 


104  Of  the  Rule  of  Interest  to  ^'c.  [CIi.  7. 

tcrial  distinction  between  this  class  of  cases,  and  the  cases  of 
an  interest  arising  from  a  liability  over — inasmuch  as  here 
the  witness  has  no  interest  either  in  regard  to  damages  or 
costs,  and,  Avhicliever  way  the  cause  may  be  determined,  he 
can  neither  gain  nor  lose  by  it ;  but,  in  the  latter  class  of  ca- 
ses, the  witness  is  actually  interested  in  the  determination  of 
the  very  question  which  forms  the  subject  of  the  action,  and 
a  favourable  verdict  at  once  relieves  him  from  a  liability  over 
in  respect  of  the  identical  question  at  issue  between  the  plain- 
tiff and  the  defendant.  It  is  quite  clear  that  the  statute  was 
meant  to  embrace  the  former  class  of  cases  ;  but  from  the  con- 
tradictory opinions  expressed  with  regard  to  the  latter  class, 
considerable  doubts  appear  to  have  been  entertained,  whether 
the  statute  was  intended  to  apply  to  them.  It  may  be  remark- 
ed, that  the  interest  arising  from  a  liability  over  could  always 
be  removed  by  means  of  a  release,  whereas  the  other  kind  of 
interest,  namely,  that  arising  from  the  right  of  using  the  re- 
cord as  evidence,  could  not  be  removed  ;  and  as  the  latter  spe- 
cies of  interest  often  occasioned  the  exclusion  of  an  extensive 
class  of  persons,  who  were  most  likely  to  have  information 
upon  the  question  at  issue,  these  might  appear  to  be  stronger 
reasons  for  the  interference  of  the  legislature  in  this  case, 
than  with  regard  to  an  interest  arising  from  a  liability  over.  (1) 


[nU]  *  CHAPTER  VIIL 

WHAT    IS    NOT    SUCH    AN    INTEREST    AS    WILL    DISq,UALirY. 

Having  endeavoured,  in  the  preceding  chapter,  to  explain 
the  general  rules  upon  the  subject  of  incompetency  from  in- 
terest, and  to  collect  and  arrange  the  various  cases  in  which 
witnesses  are  liable  to  be  rejected  from  this  cause,  it  is  now 
proposed,  in  further  illustration  of  the  subject,  to  notice  a  va- 
riety of  cases  in  which  witnesses  may  be  so  connected  with 
the  questions  at  issue  in  the  particular  action,  as  to  give  rise 
to  the  suspicion  that  they  are  interested  in  the  event,  but  in 
which  there  is  no  legal  interest  capable  of  producing  incom- 
petency. 

(1)  .Mlliou'^h  doubts  have  been  ex-  never   been    riueslloned,   and    that   tlie 

pressed  on    this   subject,    it  is    probable  statute   would    be   frittered    away  by   a 

that    the  more   liberal  construction    will  contrary  construction  :  Pickles   v.   l/ol- 

ultimately  prevail.    In  two  recent  cases,  lings,  1  Mood  Sz.  I'ob.  4G8.     Creevey  v. 

I\Ir.  liaron  I'arke,  again    ruled,  that    the  Bowman,   1  I\Iood.  &  liob.   496.     'J'he 

statute   applied  to  the  case  of  witnesses  statute,  it   seems,  does  not    apply  to  the 

liable  over  to  the  defendants,  and,  upon  case  of  an  issue  directed  by  u   Court  of 

the  contradictory  decisions  being  refer-  Equily  :  Stewart  v.  Dames,  1    Mood,  k 

red  to,  he  observed,  that  he  had  always  Rob.  472. 
ruled  dillerently,  and  that  his  ruling  had 


Ch.  8.]  Of  the  Nature  of  the  Interest,  ^'c.  105 

It  is  not  an  objection  to  the  competency  of  a  witness  that  ^Visiies,  or 
he  has  wishes  or  a  strong  bias  on  the  subject  matter  of  the  beaeiiu' 
suit,  or  that  he  hopes  to  obtain  some  benefit  from  the  result 
of  the  trial.  Such  circumstances  may  influence  his  mind  and 
afl"ect  his  credibihty,  they  are  therefore  always  open  to  obser- 
vation, and  ought  to  be  carefuUy  weighed  by  the  jury,  who 
are  to  determine  what  dependence  they  can  place  on  his  tes- 
timony ;  but  it  is  clear,  from  Avhat  has  been  seen  in  the  pre- 
ceding chapter,  that  they  are  insufficient  to  render  him  in- 
competent. 

A  witness  who  stands  in  the  same  situation  as  the  party  for  witnpss  in 
whom  he  is  called  to  give   evidence,    is  under  a  strong  bias,  i,„n  in 'c'^ivil 
and  may  have  strong  wishes  on  the  subject;  but  unless  he  will  actions. 
gain  or  lose  by  the  event  of  the  particular  suit,  he  will  not  be 
disqualified.     Thus,  if  there  are  two  actions   brought  against  f"";irespas- 
two  persons  for  the  same  assault,  in  the  action  against  one  the 
other  may  be  a  witness,  because  he  is  not  interested  in  the 
event.  (1)  (a) 

*  So  also,  in  the  case  of  Bent  v.  Baker,  (1)  which,  as  we  Und^rwri- 
have  seen  in  the  preceding  chapter,  is  a  leading  authority  on  po'iic'v!^'"^ 
the  rule  of  incompetency   from   interest,  as  that  rale  existed  [  *ii5  ] 
before   the   statute  3  &  4  W.  4,  c.  42,  it  was  decided,   after 
much  argument,   that  in  an  action  against  an  underwriter  on 
a  policy  of  insurance,    another  underwriter  was  a  competent 
witness  for  the  defendant,  on  the  ground  that  he  neither  gain- 
ed nor  lost    directly  by  the  event  of  tiie    particular   suit,   nor 
could  the  verdict   therein   be  evidence  for  or  against  him  in 
any  subsequent  suit.     So  also  it  appears,  that  in  an  action  in 
which  a  question  arises  concerning  the  validity  of  a  deed,  the 
attorney    who  prepared  the   deed  is  a  competent    witness  to 
prove  that  the  deed  is  valid,    notwithstanding  that  there  is 
another  action  pending  against  him,  in  which  he  must  fail,  if 
the  deed  be  invalid.  (2) 

The   same  rule  prevails  in  criminal  proceedings  ;  as,  when  Wimps*  m 
several  persons  are  separately  indicted  for  perjury  in  swearing  u^j'^i'ncn'ml 
to  the  same  fact,  either  of  them  may,  before  conviction,   be  a  i""'  i""- 
witness  for  the  others.  (3)      So  in    Rudd's   case,   a  woman,  '^'^^  "'°*' 
whose  husband  had  been  before  convicted,   was  admitted  to 
give   evidence    against  the  prisoner,  though  she   expected,  in 
ease  of  his  conviction,  that  her  husband  would  receive  a  par-  Accompli- 
don.  (4)     In  treating  of  the  evidence  of  accomplices,   it  has  «=«=*• 

(1)  By    Ashurat,   J.,    1  T.  11.    301.     Rep.  247.  Gun.stone  v.  Downes,  2  Roll. 
Vjy  Abbott,  C.  .F.,  5  B.  &,  C.  387.  Ab.  68.5,  Art.  3.     S   C.  ciled  2  JI.  P.  C. 

(1)3  T.  R.  27.  280,  jind  in  R.  r.  Gniy,  2  Selw.  N.    W 

(2)  Hudson  V,  Revett,  5  Ring.  368.         148. 

(3)  Balh   V.  Montague,   cit.    Fortes.         (4)  1  Ltacli  Cr.  Ca.  151. 


(a)  See  Marsh  v.  Berry,  7  Cowen,  344;  8  J.  R.  418. 
14 


106  Of  the  Nature  of  the  Interest  [Ch.  8. 

been  seen,  that  persons  admitting  their  participation  of  crime 
with  the  prisoner  at  the  bar,   but  not  indicted  with  him,   are 
competent  to  give  evidence  for  him  as  well  as  for  the  Crown  ; 
and  though  separately  indicted  for  the  same  oifence,  they  are 
not  incompetent,    until  rendered  infamous  by   actual  convic- 
tion. (5)     Where   separate   informations  of  quo  loarranto  are 
brought  against  several  members  of  a  corporation,  on  the  trial 
of  one  of  the  informations  the  other  parties  are  competent  wit- 
nesses on  behalf  of  the  defendant.  (6) 
Influence  of      *A  witucss,    wlio  has  uo    actual  interest  in  the    event  of  a 
p^'*^i,y  -i  suit,  is  not  incompetent  on  the  ground  that  the  verdict  may 
•■  J  afterwards   come   to  the  knowledge  of  a  jury  in  an  action 

brought  by  the  witness  himself,  and  so  have  an  influence  on 
their  decision,  though  not  adduced  as  evidence  before  them. 
This  subject  has  been  touched  upon  in  treating  of  the  com- 
petency of  the  prosecutor,  or  party  grieved,  to  give  evidence 
upon  indictments.  (1)  In  the  case  of  the  King  v.  Whit- 
nei/,  (2)  indeed  Lord  Holt,  on  an  indictment  for  a  cheat,  in 
obtaining  a  person's  subscription  to  a  note  of  1001.  instead  of 
51.,  rejected  the  evidence  of  the  maker  of  the  note,  on  the 
ground  that  the  verdict  would  certainly  be  heard  of  in  an  ac- 
tion on  the  note,  and  would  influence  the  jury  ;  and  this  deci- 
sion was  followed  by  Lord  Hardwicke,  in  a  case  before  him.(3) 
But  in  a  subsequent  case.  Lord  Hardwicke  reviewed  his  opin- 
ion and  that  of  Lord  Holt,  and  decided  that  the  objection 
went  only  to  the  credit,  and  not  to  the  competency  of  the  wit- 
ness ;  and  with  respect  to  the  possibility  that  the  jury  might 
hear  of  the  verdict,  he  said  that  sitting  as  a  Judge  he  could 
only  hear  of  it  judicially.  (4)  This  doctrine  was  fully  con- 
firmed in  the  subsequent  case  of  the  Kijig  v.  Boston,  (5) 
where  it  was  held  that  a  witness  was  competent  to  give  evi- 
dence for  the  prosecution  upon  an  indictment  for  perjury,  al- 
though a  civil  action  was  pending  between  himself  and  the 
party  indicted,  in  which  the  same  question  arose  as  upon  the 
indictment  and  which  was  coming  on  for  trial  at  the  same  as- 
sizes. 
Borrower  So  ill  action  for  penalties,  under  the  statute  of  usury,  against 
■"  """"  "*^  the  lender  of  the  money,  the  borrower  is  a  competent  witness 
for  the  plaintiflT ;  and  whether  he  has  or  has  not  repaid  the 
money  lent,  does  not  appear  to  make  any  essential  difference, 
so  far  as  his  competency  is  affected,  for  in  neither  case  does 
he  gain  any  thing  immediately  by  the  event  of  the  suit :  nor 
could  any  objection  be  made  to  his  competency  on  the  ground 
of  an  indirect  interest  in  the  record,  even  before  the  passing  of 

(5)  Supra,  Ch.  3. ,  (2)  1  Salk.  283. 

(())  R.  V.  Gray,  2  Selw.  N.  P.  1148,         (3)  R.  v.  Nunez,  2  Stra.  1043, 
(6th  edit.)  (4)  Rep.  temp.  Hard.  572. 

(1)  Jlnte,  Ch.  6,  p.  64.  (5)  4  East,  572.     Supra,  p.  64. 


in  case  of 
usury 


Ch.  8.]  which  disqualifies.  107 

the  statute  *3  &  4  W.  4,  c.  42,  for  the  verdict  in  the  action  for  [  *117  ] 
penalties  could  not  be  used  as  evidence  in  a  subsequent  action 
for  the  debt.  (1) 

In  the  preceding  chapter  we  have  seen,  that  a  legal  liability  ^"gcS^ 
to  be  sued  in  respect  of  the  matters  in  issue  in  a  particular  ac-  Uncertain 
tion,  in  the  event  of  an  unfavourable  verdict,  will  in  many  ca-  '"'^''^s'l") 
ses  exclude  witnesses  from  giving  evidence.  But  the  bare 
possibility  of  an  action  being  brought  against  a  witness  is  no 
objection  to  his  competency.  Thus,  it  has  been  decided,  that 
in  an  action  against  an  administrator,  one  of  the  bond  securi- 
ties for  the  defendant's  due  administration  of  intestate's  effects 
is  a  competent  witness,  on  the  part  of  the  defendant,  to  prove 
a  tender,  and  the  Court  said  in  this  case,  that  if  a  creditor  of 
the  administrator  had  been  offered  as  a  witness  (which  was  a 
stronger  case,)  there  could  have  been  no  objection  to  his  evi- 
dence being  received.  Mr.  J.  Buller  added,  "  in  order  to  shew 
a  witness  interested,  it  is  necessary  to  prove  that  he  must  de- 
rive a  certain  benefit  from  the  determination  of  the  cause  one 
way  or  the  other.  In  this  case,  supposmg  there  were  no  assets, 
though  the  defendant  would  be  answerable  for  the  costs,  he 
would  not  be  liable  on  his  bond  to  the  Ecclesiastical  Court.  He 
is  only  bound  to  distribute  the  intestate's  effects,  and  it  does 
not  appear  in  this  case  how  they  have  been  applied."  Upon 
the  same  principle,  a  witness  is  competent  to  prove  a  codicil, 
made  subsequently  to  a  second  will,  and  reviving  a  former  will, 
though  he  has  acted  under  the  first  will,  and  might  possibly 
be  subjected  to  actions  brought  against  him  as  executor  de  son 
tort,  if  it  should  be  set  aside.  (2) 

(1)  Abrahams  v.  Bunn,  4    Bar.  2251.  (2)    Baillie    v.    Wilson,    cit.  4    Cur. 

Smith  V  Prager,  7   T.  R.  60.     See  Mas-     2254,   and  see  Goodtitle  v.  Wilford,  1 
ters  r.  Drayton,  2  T.  R.  496.  Doug.  140. 

(a)  The  interest  of  a  widow  in  her  husband's  estate  is  remote,  and  therefore  she 
is  considered  competent  to  testify  in  an  action  relating  to  the  estate  :  5  J.  R.  1,58; 
4  \\.  230.  So,  the  husband  who  is  tenant  by  the  curtesy  is  a  competent  witness 
for  the  heir  at  law  in  an  action  of  ejectment  brought  by  him.  Jackson  v.  Biooks, 
8  Wend.  426.  See  5  id.  55. 

An  interest  in  the  question  to  be  decided  is  nn  objection  to  the  credit  only,  and 
not  to  the  competency  of  the  witness,  13  Mass.  61.  Although  it  appear  if  the 
piainliif  prevail,  the  property  in  dispute  will  go  to  pay  a  debt  due  to  the  witness; 
yet  if  it  also  appear,  tiiat  if  the  defendant  prevail,  the  witness  will  be  entitled  to 
the  value  of  the  propeity,  the  witness  is  competent.  In  Jackson  v.  Leek,  12  Wend. 
126,  llie  witness  admitted  that  he  preferred  that  the  plaintilf  might  succepd  in  ihe 
action  which  involved  the  title  to  land;  because  the  witness,  who  was  in  possession, 
exfiecied  to  be  able  to  purchase  of  the  plaintilT  better  than  from  the  defendant; — 
Held,  that  he  was  nevertheless,  a  competent  witness.  So,  in  Hart  v.  Deamer,  6 
id.  497,  it  was  held,  that  the  witness  is  not  excluded  unless  it  clearly  appear  that 
he  has  a  direct  and  certain  interest  depending  upon  the  event  of  the  suit. 

The  relation  of  master  and  servant,  parent  and  child,  debtor  and  creditor,  does 
not  create  such  an  interest  as  to  exclude  them  from  being  witnesses  for  or  against 
each  other;  although  they  may  bo  mutually  dependent  upon  the  personal  exertions 
of  one  aiiDlher  for  their  rights,  and  for  their  support.  I  South.  R.  231.  These  in- 
terests, however  they  may  weigh  upon  the  human  mind,  have  never  been  consider.. 


10« 


Of  the  Nature  of  the  Interest 


[Ch.  8. 


Actions  by        [)_  j^^s  l.eeii  befoi-e  stated,  that  in  actions  by  or  against  exec- 
Sp«^ik  ~  ntors  or  administrators,  a  residuary  legatee,  or  person  entitled 
legatee.       ^^  jjp^t  of  Icin  to  a  distributive  share  of  the  estate,  is  incompe- 
tent to  increase  the  fund  in  which  he  is  so  interested,  for  he 
has  a  direct  and  certain  interest  in  giving  evidence  to   tliis  ef- 
fect.    But  the  principle  of  these  cases  does  not  apply  to  lega- 
f  *118  J  tees  of  .specific  *sums  or  chattels,  for  it  is  a  matter  altogether 
uncertain,  whether  they  will  or  will  not  derive    any  benefit 
from  a  favourable  termination  of  the  suit.      Thus,  in  an  action 
by  an  executor  to  recover  a  debt  due  to  the  estate,  it  was  ruled 
by  Lord  Tenterden,  that  a  paid  legatee  was  a  competent  wit- 
ness for  the  plaintiff  to  increase  the  estate.  (1)     It  was  objec- 
ted to  his  .competency,  that  he  would  be  obliged  to  refund,  in 
case  the   estate  should  prove  deficient,  but    his  Lordship  ob- 
served, that  there  was  nothing  to  shew  .that  the  other  funds 
were  insuilicient,  and  although  the  debt  sought  to  be  recover- 
ed in  the  action  had    not  been  paid,  it  was  not  to  be  assumed 
that  there  Avas  not  some  other  estate  sufficient.  (2)      In  this 
case,   the  legatee  had  been  paid  his  legacy  ;    but  it  seems  to 
make  no  difference  with  regard  to  the  competency  of  the  wit- 
ness, whether  he  has  or  has  not  been  paid.  (3)  («)     In  a  very 
recent  case,  it  v/as  decided  by  the  (>ourt  of  King's  Bench,  in 
an  action  against  executors  for  a  debt  of  the  testator,  that  a  per- 
son entitled  to  an  annuity  under   the  will  was  a  competent 
witness  on  the  part  of  the  defendants.  (4) 

Upon  the  same  principle,  on  which  witnesses  are  not  dis- 
qualified in  the  above  mentioned  cases,  that  is  to  say,  because 
the  interest  is  altogether  uncertain,  a  creditor  of  the  estate  is  a 
com.petent  witness  for  an  executor  or  administrator  to  increase 
the  fund.  In  the  case  of  Pautl  v.  Brown^  (5)  it  was  ruled, 
in  an  action  by  an  executor  to  recover  a  debt  due  to  the  estate, 
that  a  creditor  was  a  competent  witness  for  the  plaintiff;  and 


Annuitant 
Ainder  a 
Will. 


Creditor  of 
estate. 


(1)  Clarke  'j.  Gannon,  Ry.  &,  Mo. 
N.  P.  C.  31. 

(2)  Ry.  k  Mo.  32. 

(3)  In  Johnson  v.  Baker,  2  Car.  &  P. 
207,  an  unpaid  legatee  was  admitted  in 
an  action  against  the  exectjtor,  but  it 
appears  that  in  that  case  the  demand  was 


considered  as  one  which  was  not  recov- 
erable out  of  tlie  estate.  See  5  B.  & 
Ad.  370.  by  Patteson,  .T. 

(4)  Nowell  V.    l^avies.   5   B.  &   Ad. 
3CS. 

(5)  6  Esp.  S4. 


cd  as  direct  and  positive,  going  to  the  competency  of  witnesses,  but  rather  as  col- 
lateral and  remote,  going  to  their  credibility  only. 

(a)  In  Strong  v.  Finch,  1  Alaba.  R.  23tj,  it  was  held  that  a  legatee  who  had  re- 
ceived his  legacy  v/as  an  incompetent  witness  in  an  action  against  the  executor  of 
bis  ancestor. 

In  Campbell  v.  Tousey,  7  Cowen,  fi4,  a  residuary  legatee  was  held  to  be  in- 
competent to  testify  to  protect  that  fund. 

But  in  V'ultee  r.  Rayner,  2  Hall,  376  where  the  witness  was  a  child  of  the  in- 
tesiate  and  entitled  to  a  distributive  share  of  the  estate  ;  but  the  administratrix 
pleaded  plene  aJniinistravit ;  held,  that  the  witness  was  competent  to  testify  as 
to  the  payment  of  debts  by  the  defendant,  for  had  the  pl«a  been  sustained,  tlie 
plaintitf  would  have  had  judgment  for  assets  in  futuro. 


Ch.  S.J  tvhich  disqualifies.  109 

Macdonald,  C.  B.,  said,  the  creditor  may  give  evidence  for  his 
debtor  in  his  life-time,  and  is  cqiiaUy  competent  to  give  evi- 
dence for  his  executor  after  his  death. 

In  a  case  subsequent  to  that  last  mentioned  (6)  it  was  ruled 
by  *Lord  Ellenborough,  that  a  creditor  was  not  competent  for  [  *119  ] 
the  executor,  if  it  appeared,  that  the  estate  was  insolvent,  al- 
though it  was  urged  that  the  interest  must  necessarily  be  quite 
uncertain,  for  an  executor  was  not  bound  to  distribute  equally, 
but  might  give  a  preference  to  any  creditor  whom  he  thought 
fit  to  select.  But  the  opinion  of  Lord  Ellenborough  on  this 
point  was  questioned  by  Parke,  J.,  in  a  late  case  before  him  at 
nisi  prius,  (1)  in  which  he  ruled  that  an  unsatisfied  creditor- 
was  a  competent  witness  for  an  administrator  upon  a  plea  of 
plene  administravit  ;  and  the  authority  of  the  case  of  Paull 
V,  Brown  was  fully  upheld  by  the  Court  of  King's  Bench  in 
the  case  oi  Noioell  v.  Davis.  (2)  Crodiiorsof 

It  will  be  observed,    that  there  is  a  material  difference  be-  &".  assign- 
tween  these   cases  and  the  class  of  cases  collected  in  the  pre-  '"&• 
ceding  chapter,  which  decide  that  the  creditor  of  a  bankrupt 
or  insolvent  is  incompetent  to   increase  the  fund  :    for  in  the 
latter  cases  the  assignee  is  under  an  obligation  to   distribute 
equally  amongst  all  the  creditors,  to  whom,  therefore,  the  fund 
prima  facae  belongs,  and  whatever  is  either  added  to,  or  taken 
from  the  fund,    must  naturally  be  presumed  to  be  for  the  ad- 
vantage or  disadvantage  of  the  creditors.  But  even  in  these  ca- 
ses, if  the  creditor  has  assigned  his  debt,  though  only  by  parol, 
his  competency  will  be  restored,  for  he  is  then  a  mere  naked  ^j^^^  ,^^g_ 
trustee,  having  no  beneficial  interest  whatever.  (3)  It  may,  in-  tees,  &c 
deed  be  laid  down  as  a  general  rule,  that  mere  trustees  and  ex-  ^"'"P^"^"'- 
ecutors  in  trust  are  not  rendered  incompetent  by  an  interest 

(6)  Craig  v.  Cundoll,  1  Campb.  3S1.      vency  or  inso]ven€y  of  the  estate,  but  it 

(1)  Uavies  d.  Davies,  Mo.  &  Ma.  appears  difficult  to  understand  how  this 
345.  can    aUer  the    question    with    respect  to 

(2)  See  per   Lord  Dcnman,   C.  J.,   5     the  competency  of  a  creditor.     See   per   • 
B.  £i    Ad.  371.     Ill   neither  of  the  last     Parke,  J.,  S.  C.  5  B.  fc  Ad.    370. 

two  cases  does  it   appear   that    any  evi-  (3)     Heath    v.    Hall,    4    Taunt.   326. 

dence  was  given  with  respect  to  the  sol-     Granger  v.  Furlong,  Bl.  Hep.  1273. 

(a)  See  ante,  note  (h)  p.  43. 

Executors  and  administrators  and  other  trustees  are  competent  witnesses  for  pur- 
chasers of  personal  property  claiming  under  their  sales  ;  and  if  objected  lo  on  the 
ground  of  special  liability  to  their  vendees,  that  objection  must  b?  proved  by  the 
party  objecting,  before  llie  court  will  reject  their  evidence.  Archer,  J.  in  1  H.  &: 
G. 176. 

The  rule  appears  to  be  well  settled  that  trustees  are  not  jointly  liable  to  the  ces- 
tui que  trust,  unless  they  are  made  so  by  some  joint  act  ;  each  is  responsible  for 
his  own  acts  and  for  the  money  he  receives.  Kirby  v.  Turner,  1  IJop.  Ch.  It, 
309  ;  Morrell  v.  Morrell,  5  J.  Ch.  11.  2'.)0.  See  also  De  Forest  v.  Parsons  and 
.lewett,  2  Hail,  130.  The  responsibility  of  trustees  to  account  for  and  pay  over 
the  trust  fund  is,  in  iis  nature,  separate  and  distinct. 

Where  executors  are  made  liable  to  costs  by  statute,  they  are  not  competent  wit- 
nesses. 1 1  Mass.  527  ;  12  id.  358.  In  Hawley  r.  Brown,  1  Root,  4!M,  the  ex- 
ecutor declined  the  trust,  and  his  wife  was  admitted  as  a  witness.  See  further  as  to 
the  admission  of  executors  as  witneescs  in  S  Conn.  253. 


110  Of  the  Nature  of  the  Interest  [Ch.  8. 

which  is,  as  far  as  they  are  concerned,  only  nominal,  (4)  If  a 
trustee  has  a  beneficial  interest,  or  is  exposed  to  any  immedi- 
ate liability  in  respect  of  costs,  that  may  be  another  ground  of 
objection,  but  without  such  interest  or  liability,  trustees  and 
executors  are  competent  witnesses.  (5)  In  an  action  by  a 
bankrupt  against  his  assignee,  the  official  assignee  is  a  compe- 

[  *120  ]  tent  witness  to  sustain  *the  bankruptcy,  for  his  allowance  is 
uncertain,  and  depends  upon  the  discretion  of  the  commis- 
sioner. (1) 

Other  px-  Jq  an  action  on  the  case  by  a  reversioner,  for  an  injury  done 
to  his  inheritance  by  a  stranger,  the  tenant   in  possession  is  a 

Anions  re-  Competent  witness  to  prove  the  injury.  (2)      In  an  action  be- 

speciing  re-  t^v'ecn  a  vcudor  and  the  purchaser  of  lands,  a  former  vendor, 

al  property.  it-  i  • 

who  has  sold  without  warranty,  is  competent  to  prove  the  ti- 
tle. (3)  (a)     An  executor  is  also  competent   to  prove  the  sani- 

(4)  See  1  Mod.  Rep.  107.  Goss  v.  and  cases  tliere  cited  as  to  the  rule  in 
Tracy.     1  P.   Wins,  287.     Gilb.    Evid.      equity. 

123.     1  Bl.  Rep.  366.  (1)  Giles  v.  Smith,  1  Mood.  &    Rob. 

(5)  Goodtitle   v.  Welford,    1    Doug.     443. 

140.     Bettison    v.    Bromley,    12    East,  (2)  Doddington  v.  Hudson,    1    Bing. 

250.     Per   Mansfield,    C.  J.,  4    Taunt.  257. 

328.  PhippsD.  Pitcher,  6  Taunt,  220,  (3)  Busby  v.  Greenslade,  1  Stra.  445, 
See  1  Ball  and  Beatty's  Rep.  100,  414, 

In  chajicery  it  is  settled,  that  defendants  on  the  record  may  be  witnesses.  Neil- 
son  V.  M'Donald,  6  J.  Ch.  R.  204  ;  and  at  common  law  an  executor  having  no 
interest,  era  mere  trustee  may  be  a  witness.     12  Mass.  360. 

(rt)  See  Jackson  v.  Frost,  6.  J.  R.  135  ;  4  Conn.  482. 

The  grantor  in  a  deed  of  land,  if  released,  is  a  pioper  witness  to  prove  the  plain- 
tiff's claim  in  ejectment.  15  Wend.  164.  Or,  if  he  has  conveyed  without  war- 
ranty, he  is  admissible  either  in  support  of,  or  against  the  title  which  he  conveyed. 
2  Hill's  R.  444  ;  2  Binn.  108  ;  6  id.  500  :  Doe  v.  Herbert,  1  Breese,  281  ;  3 
Wend.  386  ;  Lokerr.  Haynes,  11  Mass.  498. 

Where  the  witness  had  given  two  deeds — the  first  a  warranty  deed,  and  the 
second  a  quit-claim,  Held,  that  he  was  a  competent  witness  for  the  latter  deed  ; 
his  interest  being  rather  to  su.stain  the  deed  he  gave  with  warranty.  Wise  v.  Tripp, 
13  Maine,  9.     See  9  Pick.  348. 

In  the  case  of  Twambly  v.  Henly,  4  Mass,  441,  Borland  (the  witness)  claimed 
to  be  seized  of  the  land  detnanded,  on  the  first  day  of  .lanuary  1776,  by  his  deed 
of  that  date,  conveyed  it  to  the  demandant,  with  a  covenant  that  he  hud  full  power, 
good  right,  and  lawlul  authority  to  sell  the  land,  and  a  further  covenant  of  warranty 
against  all  persons  claiming  under  him.  Plaintiff  counts  on  his  own  seizin  against 
Henly,  who  did  not  claim  under  Boland  ;  and  to  prove  his  title,  offers  Boland  as  a 
witness,  who  is  excepted  to,  as  being  interested  by  reason  of  his  covenants.  The 
demandant  insisted  that  he  was'"not  interested,  because  he  could  not  be  liable  on 
warranty.  Although  the  judge  at  the  trial  rejected  the  witness,  the  court  on  mo- 
tion granted  a  new  trial,  saying  : — "The  witness  ought  to  have  been  admitted  and 
his  credit  left  to  the  jury.  The  two  covenants  in  the  deed  are  perfectly  consistent; 
the  first  amounting  to  a  covenant  that  the  lands  should  pass  by  the  conveyance. 
And  this  covenant  is  not  broken,  if  Borland  was  in  fact  seized,  either  by  vvrong,  or 
by  defeasible  title.  '  The  covenant  of  warranty,'  said  Parsons,  C.  J.,  '  cannot  be 
broken,  but  by  an  eviction  or  ouster,  by  some  title  paramount  to  the  grantor's  and 
this  latter  covenant  does  not  control  the  former  one.' — '  Whether  the  covenant  was 
or  was  not  broken  cannot  depend  on  the  event  of  this  suit  ;  neither  is  the  verdict 
in  this  case,  evidence  in  an  action  against  him  by  his  grantee  for  the  breach  of  this 
covenant-  If  the  demandant  recover,  still  if  Borland  had  no  right  to  convey,  he  is 
answerable  to  the  demandant  in  action  of  covenant  broken,  and  cannot  defend  Jiim- 
flelf  by  this  verdict.     If  the  demandant  fail,  and  he  sue  the  witness  for  the  breach 


Ch.  8.j  which  disqualifies.  Ill 

ty  of  the  testator  in  an  action  of  ejectment  concerning  his  real 
property.  (4)  In  none  of  these  cases  does  the  witness  gain  or 
lose  directly  by  the  event  of  the  suit,  and  as  the  verdict  could 
not  have  been  evidence  for  or  against  him  in  any  subsequent 
action,  he  was  not  incompetent  upon  this  ground  even  before 
the  latter  species  of  disability  was  removed  by  the  late  stat- 
ute. Upon  similar  grounds  it  has  been  decided,  that  in  an  ac- 
tion for  mismanagement  of  a  farm  the  sub-lessee  of  the  defen- 
dant is  competent  to  prove  its  proper  cultivation.  (5)  And  in 
a  recent  case,  where  in  an  action  of  trespass,  the  defendant 
pleaded  liberum  tenementwn  in  a  third  person,  and  justified 
under  him,  and  it  appeared  at  the  trial  that  the  plaintiff  also 
claimed  under  a  conveyance  from  the  same  person,  who  had 
subsequently  conveyed  the  land  without  warranty  to  the  de- 
fendant, and  after  that  had  taken  a  mortgage  of  the  lands  from 
the  defendant,  it  was  decided,  that  such  person  was  a  compe- 
tent witness  for  the  defendant,  for  he  had  no  legal  interest  in 
the  event ;  the  objection,  as  to  his  coming  to  impeach  a  for- 
mer conveyance  to  the  plaintiff',  would  not  effect  his  compe- 
tency but  only  his  credit.  (6)  (a) 

In  an  action  on  a  policy  of  insurance  on  goods,   where  the  Po''<^y  o*" 

^  •'  .  ..-''..  ,,    ,        Insurance. 

only  question  was  concernmg  the  orignial  destmation  of  the  Captain, 
ship,  the  captain  had  been  considered  competent  to  give  evi- 
dence for  the  plaintiff  respecting  that  fact,  though  he  was  a 
part  owner  of  the  ship,  and  as  such,  liable  to  the  owners  of  the 
goods,  in  case  *the  ship  had  unnecessarily  deviated  from  the  [  *121  ] 
voyage ;  but  if  the  question  had  turned  on  a  deviation,  he 
could  not  have  been  examined.  (1) 

So  in  an   action  of  trover  by  assignees  of  a  bankrupt,  for  Assignees 
goods  in  the   possession    of  the  defendant,    who  had  obtained  ofbankrupi. 
them  under  a  sale  from  the  bankrupt,  (the  validity  of   which 
transaction   the    plaintiffs  disputed,)  a  third  person  was  held 
competent  for  the  defendant,  to  prove  that  the  goods  belonged 
neither  to  the  plamtiffs  nor  to  the  defendant,  but  to  himself.  (2) 

(4)  Doe  V.  Teage,  5  B.  &  C.  335.  (2)  Ward   v.  Wilkinson,  4  B.  &  C. 

(5)  Wishaw  v.  Barnes,  1  Campb.  N.  410,  and  see  Nix  v.  Cutting,  supra,  p. 
P.  C.  141.  Qm.  as  to  any  liability  over  103,  the  same  doctrine  was  applied  in 
in  this  case.  ejectment    for   tithes.     Doe    d.    Bath  v. 

(6)  Simpson   v.  Pickering,  5  Tyrw.  Clarke,  3  Bing.  N.  C.  429. 
143. 

(1)  De  gymonds  v.  De  la  Cour,  2  N. 
R.  374. 

of  this  covenant,  the  plaintiff  cannot  give  this  verdict  in  evidence  to  maintain  his 
action.' 

{a)  In  Seymour  v.  Beach,  4  Verm.  493,  which  was  ejectment  by  one  claiming 
under  levy  of  an  execution  against  one  claiming  under  a  deed  from  the  execution 
debtor  which  was  prior  to  the  levy,  Held,  that  the  debtor  was  not  a  competent  wit- 
ness for  the  plaintilf  to  prove  that  the  conveyance  (o  the  defendant  was  fraudulent. 
But  the  plainlitr  although  suing  as  administrator  of  the  levying  creditor  may  restore 
the  competency  of  such  witness  by  discharging  him  from  liability  on  the  judgment. 


112  Of  the  Naliirc  of  lite  Interest  [Cli.  8. 

Action  on     ij  jijig  y^iyo  becii  licld,  that  in  an  action  on  a  contract,  in  order 

coiilract.  ,  y         .1        1  /■  •  /•  , 

to   recover   damages   lor  the  loss  ol    some  copies  oi  a   work, 
whicli  loss  was   alleged    to  have   been  occasioned  through  a 
breach  of  the  defendant's   contract  to  insnre  them  from  fire,  a 
%vitness  who  had  purchased  a  number  of  the  copies  from  the 
plaintilf,  but  was  not  privy  to  the  contract  with  the  defendant, 
was  competent  on  the  part  of  the   plaintiff  to  prove  the   con- 
tract. (3)     In  an  action  for  infringing  a  patent,  a  purchaser  of 
a  license   to   use    the   patent  is  a  competent   witness  for  the 
ses.  (a)^"     plaintilf.  (4)    And  in  an  action  for  falsely  representing  the  cir- 
cumstances of  a  person  who  was  insolvent,  that  person  is  com- 
petent on  the  plaintiff's  part  to  prove  his  insolvency.  (5) 
Witness  bp-       ^  witness  will  not  be  disqualified,  because,  through  a  mis- 
»eiriiiter-     takcu  vicw,  he  may  believe  himsell  to  have  an  interest,  which 
csted.         Y\e  does  not  possess.      It  is  true,  if  a  witness  believes  himself 
to  be  interested,  the  impression  on  his  mind,  and  his  bias  in 
favour  of  the  party  calling  him,    may  be    as  strong,   as  if  he 
were  legally  incompetent.       But  the  difference  is,  that  in  the 
one  cases,  the  inquiry  is  more  simple  and  more  easily  defined; 

(")  RlavviiKin  V.  Gillctt,  2  Tnant.  vvnnnnt  tlio  infijrence  ;  l)tU  it  would 
o25,  n.  'I'his  case"  has  beon  sometimes  seem  that  this  proposition  cannot  be  sup- 
cited  as  deciding,  that  a  dormant  partner  ported.  See  ykJHner  v.  Stocksj  4  B.  ii 
■of  the  plaiiitili'iiiay  be  a  witness  for  him  A.  4-7. 

Against  the  defendant,  where    there    has  (4)   Derosne  v.  Fairlie,    1    fliood.    &. 

been  no  privity  of  conimunication    rela-  Rob.  457. 

live  to  the  contract  on  his  part,  and   the  (5)   Smith  v.  Harris,  2  St:irk.  2  P.  C. 

language  of  IVlansfield,  C.  J.,  appears  to  47. 

In  Edgel!  v.  Lowell,  4  Verm.  405,  it  was  held,  that  one  wlio  issupposedfo  have 
conveyed  away  his  property  to  defraud  creditors,  was  competent  for  the  purchaser 
to  prove  tlie  conveyance  not  fiaudulent. 

(a)  In  Ring  v.  franklin,  2  Hall,  I,  where  the  plaintifl's  sought  to  charge  the  de- 
fendant as  owner  of  the  ship  ;  after  they  ofiered /^rj/na /«cJe  evidence  of  that  fact, 
the  defendant  ollered  M.,  the  mortgagor  of  the  ship  to  prove  the  nature  of  the  trans- 
fer to  the  defendant  ;  and  to  prove  that  although  the  conveyance  was  absolute  on 
the  face  of  the  deed,  it  was  in  truth  conditional  : — that  defendant  never  had  posses- 
sion of  the  ship,  and  never  received  any  of  her  earnings,  and  never  in  any  manner 
interfered  with  the  control  of  the  vessel  by  IM.,  until  long  after  the  repairs  in  ques- 
tion were  made  :  Held,  that  he  was  competent  to  testify.  Oakley,  J.^  said  : — 
*•  His  incom()etency,  however,  is  sup|)0sed  to  consist  in  this,  showing  himself  to  be 
the  mortgagor  of  the  ship,  and  in  the  exclusive  possession  of  her,  it  is  contended, 
that  in  case  of  a  recovery  by  the  plaintitis,  he  would  be  liable  to  indemnify  the  de- 
fendant against  the  costs  of  this  suit,  and  that  such  an  interest  excludes  him  as  a 
witness,  on  the  authority  of  IJubbly  r.  Brown,  16  J.  11.,  72.  I  cannot  perceive 
how  the  defendant  in  this  case  stands  in  the  relation  of  surety  for  !\Jinturn,  for  the 
repairs  made  to  the  vessel.  The  del'endant,  if  liable  at  all,  is  so  as  owner,  or 
mortgagee  in  possession.  If  liable  in  either  character,  he  was  bound  to  pay  in  the 
tirst  instance,  on  the  ground  that  the  contract  for  the  repairs,  in  judgment  of  law, 
was  made  directly  between  him  and  the  plaintitrs.  lie  could  then  have  no  pre- 
tence to  call  on  M.  to  indemnify  him  against  costs.  He  might  charge  him  with 
the  amount  paid  for  repairs,  as  an  expenditure  on  the  vessel,  while  in  his  possession, 
but  could  not  demand  the  costs  of  <i  suit  which  was  the  consequence  of  hia  own 
default." 

In  replevin  brought  against  the  officer  for  taking  plaintiff's  property  on  process 
against  a  third  person  ;  and  the  defendant  alleged  the  property  to  be  in  that  third 
person  and  another  :  Held,  that  the  latter  was  a  coiTipetent  witness  for  the  defsnd- 
ant.     Page  f.  Weeks,  13  Mass.  199. 


Ch.  8.]  ichich  disqualifies.  113 

in  the  other  it  would  be  complicated,  vague,  and  uncertain. 
For  *the  purpose  of  determining  whether  a  witness  was  in-  [  *122  ] 
competent,  on  the  ground  of  beheving  himself  to  be  interest- 
ed, it  m>ght  be  necessary  to  examine  him  on  a  great  variety 
of  points,  which  after  all  would  be  more  proper  for  the  consid- 
eration of  a  jury ;  as  for  example,  on  the  nature  of  the  benefit 
he  expects,  the  reasons  for  his  expecting  it,  or  the  impression 
which  such  an  expectation  might  have  produced  on  his  mind.- 
Such  an  inquiry  would  in  all  cases  be  extremely  indefinite,  and 
would  lead  to  great  inconvenience.  The  course,  therefore, 
uniformly  taken,  is  to  inquire,  not  into  the  state  of  the  wit- 
ness's belief  on  the  subject,  but  to  ascertain  whether  or  not, 
as  a  mattet  of  fact,  he  has  any  existing  legal  interest  in  tho 
event  of  the  suit. 

Thus  it  has  been  held,  that  a  witness  who  believes  himself  Honorary 
under  an  obligation  of  honour  to  indemnify  the  bail  in  an  ac-  "  '° 
tion,  is  not  incompetent,  unless  he  has  in  fact  entered  into  an 
engagement  to  that  effect.  (1)  Such  an  obligation  is  in  gen-^ 
era!  of  a  nature  so  uncertain  and  variable,  that  it  cannot  safely 
be  recognized  in  courts  of  justice  as  a  motive  of  conduct.  Be- 
sides, where  the  sense  of  honour  is  so  strong  and  binding  as  to 
influence  a  witness  against  his  interest,  it  must  be  unnecessa-- 
ry  to  reject  the  witness  ;  as  the  same  principle,  which  would 
induce  him  to  pay  the  costs,  would  oblige  him,  in  giving  his 
evidence,  to  speak  only  the  truth  ;  and,  in  cases  where  the 
sense  of  honour  is  less  firm  and  imperative,  the  ground  of  the 
objection  fails,  since  the  witness  is  not  bound  in  point  of  law, 
and  does  not  feel  himself  absolutely  bound  in  point  of  morals. 
But,  independently  of  this  reasoning,  another  more  general 
answer  is,  that  the  ends  of  justice  are  most  effectually  attain- 
ed by  a  full  and  complete  investigation  of  the  subject  in  dis- 
pute ;  and,  unless  the  objection  to  the  witness  is  founded  on  a 
strictly  legal  interest,  he  will  be  admitted  to  give  evidence. 
In  the  case  supposed,  of  a  witness  who  says  he  thinks  himself 
bound  in  honour  to  pay  the  costs,  it  might  be  injurious  to  the 
party  who  calls  him,  to  be  deprived  of  his  testimony  on  ac- 
count of  such  a  fancied  obligation  ;  more  especially,  as  it  is  an 
obligation,  which  may  easily  be  pretended  by  the  witness, 
*but  which  it  is  scarcely  possible  for  the  court  justly  to  appre-  [  *123  J 
ciate,  and  which,  from  the  nature  of  the  case,  the  party  cannot 
release  nor  enforce  against  the  witness  ;  on  the  other  hand, 
his  testimony  may  not  deserve  all  the  credit  due  to  a  witness 
free   from  bias,  and  it  ought  therefore  to  be   strictly  examin- 

(1)  Pederson   v.  Stoffles,   1  Campb.     see  Folheringham  r.  Greenwood,  I  Str. 
145,  S.  1*.,  said  to  have  been  ruled  cun-     129. 
tra,  in  an  old  case,    by   Parker,  C.  J.; 

15 


(*) 


114  Of  the  Nature  of  the  Interest  [Ch.  8. 

cd  and  sifted.  The  witness,  then,  is  to  be  heard,  but  his 
evidence  is  open  to  observation.  (1)  (a) 
Interest  on  Cases  not  unfrequently  arise,  in  which  a  witness,  who  has 
both  sides.  ^^^  interest  inchning  him  to  one  of  the  parties  to  a  suit,  has 
also  an  interest  inchning  him  to  the  opposite  party.  These 
cases  have  been  adverted  to  in  the  last  chapter,  where  it  has 
been  shewn,  that  if  the  interest  on  one  side  be  greater  than 
that  on  the  other,  the  party  will  be  an  incompetent  witness 
ibr  the  side  on  which  his  interest  preponderates  ;  but  where 
the  liability  or  interest,  on  the  side  on  which  he  is  called,  is 
counterbalanced  or  outweighed  by  an  equal,  or  greater  liability 
or  interest  on  the  other  side,  he  will  be  competent. 

Thus,  in  an  action  of  assumpsit  for  money  paid  to  the'use  of 
the  defendants,  who  were  ship-owners.  Lord  Kenyon  admit- 

(1)  There  are  several  dicta  in  support  P.  by  Perryn,  B.,  in  Newiand's  case,  I 

of  the    position,    that  a   witness   is   not  Leach,  Cr.  C.  353.     And  see  a  case  tri- 

competent,  if  he   believes  himself  inter-  ed    before    Lord    Mansfield,    cited    by 

ested,   whether  he  is  or  is  not  interested  counsel   in  Rudd^s  case,  Leach,  Cr.  C". 

in  strictness  of  law.     By  Pratt,  C.  J.,  in  154.     See  also  the  case  of  the   Amitie, 

Fotheringhani  v.  Greenwood,  1  Str.  129,  Villeneuve,  5  Robinson,  Adm.  Rep.  344, 

cited  and  approved    by  Lord   Loughbor-  n.;  and  the  case  of  the  Galen,   2   Dod- 

ou"h,  C.  J.,  and   by  Gould  J.,-  in  Tre-  son,  Adm.  Rep.  20. 
lawney,  v.  Thomas,   1   H.  Bl.  307.     S. 

(a)  Although  there  is  high  authority  in  favor  of  excluding  the  witness  upon  the 
ground  of  an  imaginary  or  honorary  obligation,  which  he  honestly  believes  he  has 
in  the  event  of  the  suit  ;  4  Mass.  518  ;  1  Conn.  282  ;  2  Mumf.  148  ;  8  J.  R.  428; 
1  Dall.  62  ;  2  id.  5  ;  4  Bibb.  445  ;  2  J.  J.  Marsh,  390  :— The  weight  of  authori- 
ty is  very  clearly  different  ;  so  that  the  law  seems  to  be  well  settled,  that  an  hono- 
rary obligation,  without  a  legal  interest  does  not  render  a  witness  incompetent. 
See3  S.  &  R.  130  ;  Peck,  108;  4  S.  &  R.  222  ;  3  G.  &  J.  282  ;  6  Conn. 
365  ;  4  Wend.  292  ;  17  id.  101. 

On  the  other  hand,  a  witness  really  interested  shall  not  be  received,  because  he 
thinks  he  is  not  so.  17  VVend.  101— Cowen.  See  Ry.  &  Mo.  388  ;  8  J.  R.  462 ; 
9  id.  219  ;   4  id.  292. 

(6)  See  16  John.  R.  72  ;  2  Ilall,  21  ;  Rice  v.  Austin,  17  Mass.  197  ;  Mar- 
shall r.  Davis,  1  Wend.  109  ;  Frost  v.  Hill,  3  id.  386  ;  14  id.  593  ;  17  id.  18,  to 
the  point  that  where  the  interest  of  the  witness  is  neutralized,  so  that  it  is  a  matter 
of  pecuniary  indifference  to  him  which  succeeds  ;  as  where  he  is  equally  answera- 
ble, or  has  an  equal  remedy,  whichever  way  the  result  of  the  suit  may  be  ;  the 
witness  can  lose  nothing,  he  is  competent  to  testify.  In  the  case  cited  from  the  14 
Wendell,  it  appeared,  that  the  witness  though,  liable  to  defendants,  the  complain- 
ants were  liable  over  to  him,  which  neutralized  his  interest.  In  Lake  v.  Auborn,  17 
Wend.  18,  it  appeared  that  the  witness  would  be  liable  to  the  costs  of  the  defence 
if  the  plaintiff  did  not  recover  ;  but  as  it  also  appeared  that  he  held  a  bond  suffi- 
cient to  indemnify  him  against  such  costs,  he  was  held  to  be  a  competent  witness. 
A  witness  who  is  to  gain  or  lose  nothing  by  the  event  of  the  suit,  is  indiflerent  be- 
tween the  parties  litigant.     2  Hill,  484  ;  7  Cowen,  358. 

In  an  action  by  the  landlord  against  a  third  person,  the  tenant  was  admitted  to 
testify  as  to  the  contract  by  which  the  rent  was  reserved  to  be  paid.  Thus,  in  a 
proceeding  by  the  landlord  against  the  sheriff,  where  the  latter  was  sued  for  not  pay- 
ing over  money  collected  on  the  sale  of  the  property  of  the  tenant  to  satisfy  a  mort- 
gage :  Held,  that  the  tenant  was  a  competent  witness,  because  if  the  landlord's 
right  to  recover  was  defeated,  he  still  might  recover  his  rent  of  the  witness.  It  is 
true,  it  might,  as  to  a  third  person,  defeat  the  landlord's  right  of  distress,  but  this 
could  not  benefit  the  witness.  2  Hill's  R.  484.  He  is,  in  some  sense,  said  the 
court,  indifi'erent  between  the  parties.  He  owed  them  both  ;  and  the  discharge  of 
one  debt  by  the  sale  of  the  mare,  will  leave  the  other  unpaid,  and  to  be  paid  by 
him. 


tractors. 


Oil.   8. J  tvhich  disqualifies.  115 

ted  the  captain  as  a  witness  for  the  plaintiff,  to  prove  that  he 
had  received  the  money  for  the  defendants'  use  ;  for  he  stood 
indifferent  between  the  parties,  and,  which  ever  way  the  ver- 
dict might  go,  he  was  equally  answerable.  (2)  (a)  So,  in  an  ac- 
tion of  covenant  for  rent,  where  the  point  in  issue  was,  wheth- 
er A.  B.,  whose  title  both  the  plaintiff  and  defendant  admit- 
ted, had  demised  the  premises  first  to  the  plaintiff  or  to  anoth- 
er person,  A.  B.  was  considered  a  competent  witness  for  the 
defendant  to  prove  the  fact,  the  Court  saying  that  it  was  a 
matter  of  indifference  to  the  witness,  whether  he  had  one  per- 
son or  the  other  for  *his  tenant,  and  though  he  might  feel  in-  [  *124  ] 
clined  to  prefer  one  tenant  to  another,  this  .objection  would  go 
to  his  credit  only,  and  not  to  his  competency,  because  the  ver- 
dict could  not  be  given  in  evidence  in  any  action  to  be  brought 
by  or  against  him.  (1)  (6) 

Several  cases,  relative  to  the  competency  of  witnesses  equal-  Joim  coa- 
ly interested  on  either  side,  have  arisen  with  regard  to  co-con- 
tractors and  partners.  In  an  action  on  a  bond  against  one  of 
several  obligors,  another  of  the  obligors  is  competent  for  the 
plaintiff  to  prove  the  execution  of  the  bond.  (2)  (c)  And  in  an 
action  on  a  promissory  note  against  one  of  several  joint  makers, 
a  maker  of  the  note  who  is  not  sued  is  competent  to  prove 
the  defendant's  signature.  (3)  In  these  cases  it  has  been  said, 
if  the  plaintiff  recover,  the  witness  will  be  liable  to  the  defen- 

(2)  Evanjj  v.  Williams,  7  T.  R.  481,  (t)  Bel!  v.  Harwood,  3  T.  R.  308. 
n.  (c.)  Rocber  v.  Busher,  1  Stark.  N.  (2)  Luckett  d.  Graham,  1  Stra.  35. 
P.  C.  27.  (3)  York  v.  Biott,  5  M.  &  S.  71. 

(a)  The  master  of  a  vessel  is  competent  to  prove  the  loan  of  money  abroad  for 
the  purpose  of  the  voyage  in  an  action  against  the  charterer.  8  Greenl.  298.  So 
also  in  a  suit  by  tlie  vendor  of  sliip-stores  brought  against  the  owner  of  tlse  ship, 
the  master  is  competent  to  testify  for  tiie  plaintiff".     Browne's  R.  85. 

(&)  Ahhougli  a  recovery  in  tlie  suit  v/ould  operate  to  extinguish  the  witness' 
del)t  ;  yet  if  he  would  be  liable  over  for  the  same  amount,  he  is  a  competent  wit- 
ness. 4  J,  R.  12G.  In  Benedict  v.  Ilecox,  18  Wend.  490,  two  persons  were 
sureties  to  the  maker  of  a  note,  and  one  of  such  sureties  being  compelled  to  pay 
the  note,  brought  bis  action  against  the  principal  debtor  to  recover  back  the  money 
paid  :  Held,  that  the  co-surety  was  competent  to  testify  for  the  plaintiti'.  .And  on 
the  other  hand,  if  one  surely  sues  iiis  co-surety  for  contribution,  the  principal  debt- 
or stands  indillerent  ;  he  is  not  liable  to  the  costs  and  has  no  concern  in  the  contro- 
versies of  tiie  sureties  between  themselves,  (i  Pick.  419.  .See  also  Frost  v.  Hill, 
3  Wend.  386. 

15ut  the  witness  must  stand  entirely  indifferent  as  to  the  event,  so  that  his  interest 
cannot  in  any  degree  be  afTected  l)y  it  ; — if  in  one  event,  his  liability  is  diminished, 
be  is  not  a  competent  witness  for  that  party  and  to  produce  that  event.  Harwood 
V.  Murphy,  4  Hals.  21fi. 

(c)  .See  Lovett  v.  Adams,  3  Wend  380. 

In  United  States  v.  Leffer,  11  I'et.  R.  86.,  which  was  an  action  on  a  joint  and 
several  bond  ;  Held,  that  the  defendant,  the  principal,  was  admissible,  allhougb  it 
appeared  that  be  had  confessed  judgment  on  the  bond  by  a  cognovit  actionem  ; 
but  he  bad  been  discharged  from  confinement  on  the  execution  under  the  insolvent 
laws  of  the  United  States  : — He  having  also  been  released  by  bis  co-ol)ligors. 

But  a  surety  on  a  bond,  given  to  obtain  a  release  from  the  sequestration,  which 
the  plaintiff  had  obtained  at  the  commencoment  of  the  suit,  cannot  be  admitted  to 
testify  for  the  defendant.      19  Matt.  R.  372. 


116 


Of  the  Nature  of  the  Interest 


[Ch.  8. 


Partners. 


dant  for  contribution ',  if  the  plaintiff  fail,  he  may  resort  to 
the  witness  for  the  whole,  and  in  that  case  the  witness  will 
be  entitled  to  contribution  for  the  defendant  ;  so  that  in  eith- 
er point  of  view  the  witness  stands  indifferent  between  the 
parties.  So  also  in  assumpsit  for  goods  sold  and  delivered,  a 
witness,  who  admitted  himself  to  be  a  partner  of  the  defend- 
ant, was  held  competent  on  the  part  of  the  plaintiff  to  fix  the 
defendant's  liability.  (4)  And  in  an  action  charging  the  de- 
fendant as  a  partner  in  a  trading  company,  a  witness,  proved 
to  be  himself  a  share-holder,  was  held  competent  on  the  part  of 
the  plaintiff  to  prove  that  the  defendant  was  a  partner.  (5) 
Upon  the  same  principle,  in  an  action  of  contract  in  which 
the  defendant  pleads  the  non-joinder  of  a  partner  a  co-contrac- 
tor in  abatement,  the  alleged  joint  contractor  is  a  competent 
witness  of  the  plaintiff  to  negative  the  plea,  (6)  for  it  is  in- 
different to  the  witness,  which  way  the  verdict  goes.  Indeed, 
if  he  be  in  fact  a  partner,  the  verdict  in  favour  of  the  plaintiff 
would  rather  be  prejudicial  to  him,  for  he  would  then  be  lia- 
ble to  contribution,  increased  by  the  amount  of  the  costs.  In 
the  one  way,  therefore,  the  verdict  would  be  indifferent,  in  the 
other  prejudicial.  (7)  («) 

*Prom  the  case  of  Ridley  v.  Taylor,  ( 1 )  it  appears  to  have 
been  considered  by  the  court  of  King's  Bench,  that  in  an  ac- 
[  *125  ]  tion  by  the  indorsee  against  the  acceptor  of  a  bill  drawn  in  the 
name  of  a  firm,  a  member  of  the  firm  was  a  competent  wit- 
ness for  the  defendant,  to  prove  that  the  bill  had  been  drawn 
by  one  of  the  partners  in  fraud  of  the  rest,  and  indorsed  by 
him  to  the  plamtiff  for  a  separate  debt,  (b) 


Partner  of 
drawer  of 
bill 


(4)   Blackett  v.  Wier,  5  B.  &  C  385. 
(3)  Hall  V.  Curzon,  9  B.  &  C.  646. 

(6)  Hudson  v.  Robinson,  4  M.  &  S. 
476.  Cosham  v.  Goldnay,  2  Stark.  N. 
P.  C.  414. 

(7)  By  Lord  Ellenborough,  4  M.  & 


S.  479.     We  have  seen  in  the  last  chap- 
ter, that  on  account  of  the  superior   lia- 
bility for  costs,  the  witness  has  been  held 
incompetent  for  the  defendant. 
(I)  13  East,  175. 


(a)  See  also  Pike  v.  Blake^  8  Verm.  R.  400  ;  M'L,alne  v.  Batchelor,  8  Green). 
324. 

In  Fox  V.  Whitney,  16  Mass.  118,  it  was  held,  that  in  an  action  sued  by  the 
payee  against  the  maker  of  a  note,  the  defendant  might  call  a  party  to  the  note  who 
was  a  mere  surety  to  testify  for  hiin,  the  surety  not  being  liable  to  contribution. 

(b)  See  ante  p.  So,  note  (a.) 

Ridley  v.  Tar/lor — In  Dpb  v.  Halsey,  16  J.  R.  38,  Ch.  J.  Spencer  observes, 
that  the  "  difference  between  the  decisions  of  this  court  and  that  of  the  King's 
Bench,  consists  in  this  :  We  require  the  separate  creditor  who  has  obtained  the 
partnership  paper  of  the  firni  for  the  private  debt  of  one  of  the  partners,  to  sijow 
the  assent  of  the  whole  firm  to  be  bound.  The  rule  of  the  King's  Bench  throws 
the  burthen  of  avoiding  such  security  on  the  firm,  by  requiring  them  to  prove,  that 
the  act  was  covinous,  on  the  par.t  of  the  partner,  for  whose  private  debt  the  paper 
of  the  firm  was  given,  by  showing  that  it  was  done  without  the  knowledge,  and 
against  the  consent,  of  the  other  partners,  and  that  the  fact  was  known  to  the  sepa- 
rate creditor  when  he  took  the  paper  of  the  firm."  Sea  also  3  Wend.  415  ;  H 
id.  141  ;  5  Pick.  11  ;  11  S.  &  R.  387. 


Ch.  8.]  which  disqualifies.  117 

In  actions  on  negotiable  securities  many  instances  arise  in  tenons  on 

,  .    ,  .  ,  "    .  ■'  .  ,        hills    and 

which  parties  to  the  instrument  are  competent    witnesses,  by  notes. 

reason  of  an  equal  liability  on  either    side.      It    has  already 

been  mentioned,  that  in  an  action  ao;ainst  one  of  several  ma-  Competcn- 

'    .    .  o  cy  of  joint 

kers  01  a  note,   a  joint  maker  not  sued  is  a  competent  witness  maker  of 
for  the  plaintiff.     And  in  an  action   against  the  acceptor  of  a  "'"^*" 
bill,  the  drawer  is  a  competent   witness  for  either  party.  (2)  ^"^^^  °^ 
Thus,  he  has  been  admitted  for  the  plaintiff,  to  prove  the  de- 
fendant's hand-writing    to  the   bill  ;  (3)  (a)  and  he  has  also 
been  admitted   for    the  defendant,  to  prove   payment  of  the 
bill,  (4)  and  also  to  impeach  the  plaintiff's  right  to  recover,  on 
the  ground  of  an  usurious  consideration.  (5)    If,  however,  the 
bill  has  been  accepted  for  the   drawer's   accommodation,    the  Accommo- 
drawer  is  incompetent  on  behalf  of  the  acceptor,  (as  we  have  drawer  in- 
seen  in  the  preceding  chapter)  on   the  ground  that  he  is    not  'ompeieiit 
merely  liable  to  the  acceptor  for  the  amount  of  the  bill,  but  is  am, 
also  bound  to  indemnify  him   for  the  costs  of  the  action  ;  (6) 
in  this  case,  however,  the  drawer  will  be  rendered  competent 
by  bankruptcy  and  certificate.  (7) 

In  an   action  on  a   promissory  note  or  bill  by  an  endorsee,  Compeien- 
the  indorser   is  in  general  a  competent   witness,  either  for  the  ser°'""^°'^' 
plaintiff  *or  the  defendant.       He  may  be  called  by  the  plain-  [  *126  ] 
tiff  to  prove  his  own  endorsement,  (1)  and  by  the   defendant 
to  prove  that  the   bill  has  been  paid,  (2)  or  that  it  is  void  on 
the  ground  of  not  being  properly  stamped,  having  been  actu- 
ally made  in  London,   though  dated  in  a  foreign  country.  (3) 
In  these  cases    there  is  no  interest  to    disqualify  the   witness 
from  giving   evidence  for  the  plaintiff,  for   although  the  cir- 
cumstance of  the  plaintiff  succeeding  in  the  action  may  pre- 
vent him  from  suing  the  witness,  it  is  not  certain  that  it  will 
have  this  effect  ;  and  whatever  part  of  the  bill  or  note  the  in- 
dorser is  compelled  to  pay,    he  may  recover  again  from    the 
drawer  or  acceptor ;  the  witness  is  also  competent  for  the  de- 

(2)  Dickinson  u.  Prentice,  4  Esp.  N.         (6)   Supra,  p.  106.   Jones  v.  Brooke, 
P.  <\  32.  4  Taunt.  464. 

(3)  Dickinson  v.  Prentice,  4  Esp.  N.         (7)  Ashton  v.  Longes,  Mo.  &  Ma.  N. 
P.  C.  32,  P.  C.  127. 

(4)  Humphrey  «.  Moxon,  Peake,  N.         (1)  Richardson  v.  Allen,  2  Stark.  N. 
P.  C.  52.      See    Pool   v.    Bousfielcl,    1  P.  C.  334. 

Campb.  55.     Le  Sage  v.  Johnson,  For-  (2)  Charrington  v.  Milner,  Peake,  N. 

rest,  23.     (9  Mass.  55.)  P.  C.  6. 

(5)  Rich  V.  Topping,  Peake,  N.  P.  (3)  Jordaine  v.  Lashbrooke,  7  T.  R. 
C.   224.     Brard  v.  Ackertnan,    5   Esp.  601. 

119. 

(a)  See  9  Mass.  55  ;  3  N.  II.  115. 

In  an  action  by  the  endorsee  against  tlie  acceptors,  the  drawer  has  been  heiil  not  / 
to  be  competent  to  testify  for  the  ptaintitl" ;  for  if  the  plaintitF  prevails,  he  will  be  li- 
able to  account  to  the  defendants  to  the  amount  of  the  bill  only.  If  the  defendants 
eucceed,  he  as  drawer,  will  be  answerable  to  the  plaintiff,  as  holder,  not  only  for 
the  amount  of  the  bill,  but  also  for  charges,  damages,  and  interest.  Sttott  v. 
M'Lellen,  2  Greenl.  N.  199. 


lis  Of  the  Nature  of  the  Interest  [Ch.  8. 

fendant,  for  if  the  plaintifl'  fail  lie  is  not  prevented  from  suing 
the  witness.  (4)  [a] 

(4)  See  Ba^'ly  on  Bills,  5tli  edit.  536. 

(a)  See  11  J.  R.  128  ;  2  N.  H.  R.  212  ;  6  Cowen,  484.  In  Barker  v.  Pren- 
tiss, 6  Mass.  439,  which  was  an  action  by  the  endorsee  against  the  drawer,  the  en- 
dorsee was  admitted  as  a  witness  to  prove  that  iiis  endi)rseinent,  although  not  lim- 
ited in  its  terms  as  to  its  use,  was  in  fact  made  for  the  use  of  the  payees,  and  as 
such  was  received  by  the  plaintiff.  Parsons,  C.  J.,  observes  in  reference  to  the  ob- 
jection to  the  witness,  *o  control  the  effect  of  his  endorsement : — "  This  objection 
must  rest,  eillier  on  the  interest  of  the  witness,  or  on  some  principle  of  legal  policy, 
by  which  lie  is  excluded  As  to  his  interest,  if  the  plaintiff  fails  in  this  action,  lie 
cannot  have  recourse  to  tiie  witness  (the  endorsement  being  ivithout  recourse,) 
because  iiis  endorsement  specially  guards  against  such  recourse.  If  he  has  any  in- 
terest, it  is  that  the  plaintiff  recover,  and  his  testimony  being  jigainst  the  plaintifT, 
is  against  his  interest.  On  princi|)les  of  legal  i)olicy,  an  original  party  to  an  usuri- 
ous or  gaming  negotiable  security,  vvhich  is  void  in  the  hands  of  an  innocent  pur- 
chaser, shall  not  be  a  witness  against  such  a  purchaser,  because  his  testimony  is  to 
establish  the  original  fraud,  by  enabling  a  fraudulent  party  to  raise  money  on  such 
security,  and  afterwards  to  protect  him  from  any  liability  on  his  endorsement.  But 
a  party  to  such  security,  when  disinterested,  may  be  a  witness  to  prove  any  subse- 
quent facts,  which  admit  the  legality  of  the  instrument  in  its  original  form. 

So,  in  Powell  v.  Waters,  17  J.  II.  176  ;  8  Cowen,  669  S.  C,  a  second  endor- 
ser was  considered  an  admissible  witness  for  the  first,  in  an  action  against  him  by 
the  second  endorsee,  his  interest  being  against  the  parly  calling  him.  An  endorser 
cannot  sue  his  endorsee.  On  the  other  hand,  he  is  incompetent  to  prove  notice  of 
non-acceptance  where  the  action  is  brought  by  a  subsequent  endorsee  against  the 
first  endorser.     Talbot  v.  Clark,  8  Pick.  51. 

The  vexed  question  in  respect  to  the  admissibility  of  a  party  to  negotiable  paper 
to  invalidate  it  by  his  own  testimony  has  been  adverted  to  in  Ibrmer  notes,  (see  p. 
41.  n.  (a)  and  p.  104.  n.  (a)).  The  earlier  decisions  in  New  York,  were  for  ex- 
cluding the  witness  who  was  a  party  to  negotiable  paper;  3  J.  Cas.  185  ;  and  in 
subsequent  cases  the  rule  was  considered  as  so  well  established,  that  he  could  not 
be  permitted  to  prove  it  usurious,  where  the  holder  was  apprised  of  the  fact  of  usu- 
ry at  the  time  he  received  the  note  ;  14  J.  R.  273.  Still  later  decisions,  however, 
seem  to  have  gone  to  the  full  extent  of  the  doctrine  in  the  text.  Tuthill  v.  Davis, 
20  J.  R.  285  ;  Stafford  v.  Rice,  5  Cowen,  23  ;  It  is  now  laid  down,  that  every 
person  not  interested  in  the  event  of  the  suit,  not  incapacitated  by  his  religious  te- 
nets, nor  by  the  conviction  of  an  infamous  crime,  is  a  competent  witness.  Bank  of 
Utica  V.  Hilliard,  5  Cowen,  153. 

In  Barretto  v.  Snowden,  5  Wend.  181,  which  was  an  action  sued  by  the  endor- 
see against  the  maker,  the  indorser  was  considered  competent  to  prove  that  the 
consideration  of  the  note  was  not  usurious  ;  it  not  appearing  that  he  was  liable  on 
the  note. 

In  Manning  v.  Wheatland,  10  Mass.  R.  502,  it  was  held,  that  an  indorser  was 
not  competent  to  establish  usury  in  the  negotiation  of  the  note  by  him.  But  the 
decision  in  this  case  has  been  doubted  in  Knights  v.  Putnam,  3  Pick.  184  ;  and  in 
Fox  et  al  v.  Whitney,  16  Mass.  118, — Wilde,  J.  says  :— "  The  authority  of  that 
case  has  been  questioned,  and  the  objection  to  the  doctrine,  as  there  laid  down,  was 
entitled  to  great  consideration.  The  witness  was  held  to  be  incompetent,  not  be- 
cause lie  was  interested,  but  on  the  ground  of  legal  policy,  which  will  not  permit 
one  who  has  transferred  a  negotiable  security  as  valid,  to  invalidate  it  by  his  testi- 
mony ;  but  in  that  case,  as  in  this,  there  was  no  illegality  in  the  original  contract, 
and  no  usury  except  in  the  transfer,  in  which  the  plaintiff  himself  was  the  guilty 
party." 

In  Kent  v.  Walton,  7  Wend.  256,  which  was  sued  by  the  endorsee  against  the 
maker  ;  and  the  deposition  of  the  second  endorser  was  offered  to  prove  the  declara- 
tions of  the  payee  that  the  note  was  lent  to  him  by  the  maker,  without  considera- 
tion, and  that  the  payee  was  dead  :    Held,  that  the  evidence  was  not  admissible. 

In  Van  Schaick  v.  Stafford,  12  J.  R.  Ch.  J.  Spencer  says  : — "The  promissorand 
endorser  stood  in  the  relation  of  principal  and  surety  ;  and,  one  being  sued,  we 
think  tlie  other,  being  divested  of  all  pecuniary  interest  by  the  release,  was  a  com- 


Ch.  8.]  loJiich  disqualijies.  119 

If  a  bill  has  been  drawn  for  the  accommodation  of  the  in-  Afc"m.mo- 

,  .  .  r-  ^  ^      •         ■  m  elation  111- 

dorser,  he  is  a  competent   witness  lor  the   plamtin,  to    prove  dorsre  or 
that  the  latter  save  him  value  for  the  bill :  (5)  for  the  reason,  f'f^^^er— 

o  \      /  7    conipelent 

upon  which  an  accommodation  drawer  or  indorser  has  been  for  piaimiff. 
held  incompetent  for  the  defendant,  namely  on  the  ground  of 
a  liability  to  costs,  does  not  apply,  when  the  witness  is  called 
on  the  part  of  the  plaintiff.  And  in  a  very  recent  case,  where 
a  bill  had  been  accepted  for  the  accommodation  of  the  drawer, 
who  had  misapplied  the  bill,  and  the  acceptor  brought  trover 
to  recover  it  from  a  third  party,  it  was  decided  by  the  Court 
of  Common  Pleas,  that  the  drawer  was  a  competent  witness 
for  the  plaintiff,  on  the  ground  that  which  ever  way  the  ver- 
dict went,  he  would  be  liable  to  one  or  other  of  the  parties, 
and  therefore  stood  indifferent.  It  was  argued  in  this  case, 
that  if  the  plaintiff  failed,  the  witness  would  be  liable  to  him 
for  the  costs,  but  the  Court  said  there  was  no  principle,  upon 
which  the  witness  could  be  held  liable  to  the  plaintiff  for  the 
costs  of  an  action,  which  the  latter  was  unable  to  sup- 
port. (6)  {a) 

(5)  Shuttleworth  v.  Stephens,  1  (6)  Fancourt  v.  Bull,  1  Bing.  N.  C. 
Campb.  408.  '  6SI. 

petcnt  witness  to  prove  that  the  plaintifl"  himself   received  the  security  open  a  cor- 
rupt and  u-jurious  contract."     See  2  Yerg.  11.  35  —  1  Ilawie,  195  ;    3  Rl'Cord,  71. 
So,  in  Hartford  Bank  v.  Barry,  17  Mass.  94,  it  was  laid  down  generally,   that  a 
party  to  the  note  if  disinterested  is  competent  to  prove  usury  in  the  transfer. 

In  Knights  v.  Putnam,  3  Pick.  184,  it  was  ruled,  that  the  indorser  could  not  ho  a 
witness  to  qualify  his  endorsement  by  establishing  an  interest  in  himself.  But  in 
Adams  t'.  Carver,  C  Greenl.  392,  it  was  held,  that  such  indorser  was  competent  to 
prove  the  time  of  the  indorsement  and  facts /jrfor  not  affecting  the  original  validity 
of  the  note. 

In  an  action  by  the  endorsee  against  the  maker,  the  endorser  was  admitted  as  a 
witness  for  the  plaintiff';  he  having  been  released  ; — although  it  appeared  that  on 
one  of  the  notes  sued  in  tiie  same  action,  the  witness  was  the  maker  and  the  de- 
fendant endorser  ;  for  he  was  not  thereby  interested  in  the  event  of  the  suit.  East- 
man V.  Winship,  14  Pick.  44. 

(a)  In  i\Iyers  v.  Palmer,  18  J.  R.  167,  the  defendants  indorsed  nn  accommoda- 
tion blank  note  ;  and  received  the  promissory  note  of  the  maker  which  they  en- 
dorsed to  the  plaintiff':  Held,  that  the  maker  as  well  as  a  subsequent  endorser  was 
competent  to  testify  that  the  plaintiff"  had  improperly  procured  the  blanks  to  be  fill- 
ed will)  a  much  larger  sum  than  was  agreed  upon. 

In  the  case  of  the  U.  S.  Bank  v.  Dunn,  6  Pet.  51,  the  second  indorser  was  of- 
fered to  prove  that  Scott,  the  maker  of  the  note  told  him,  that  one  VV.  had  pledged 
stock  to  pay  the  note  ;  also  that  one  of  the  ollicers  of  the  bank  said  that  the  names 
of  the  indorsers  were  required  for  i'orin  sake  only  ;  and  consequently  witness  pro- 
cured defendant  to  indorse  the  note  ;  the  witness  and  defendant  both  being  volun- 
teers and  indorsers  without  consideration.  Held,  that  the  witness  was  incompetent. 
The  rule,  that  one  whose  name  appears  on  negotiable  paper  is  to  be  excluded  on 
the  ground  of  policy  is  applied  only  to  the  case  of  a  witness  called  to  testify  against 
a  bnna  fide  holder  of  the  bill  or  note.  But  he  may  be  called  to  show  that  after 
the  note  had  been  drawn  and  indorsed  and  delivered  to  a  third  person  for  a  particu- 
lar purpose,  that  a  third  person  fraudulently  put  the  note  in  circulation  ;  Woodhull 
V.  Holmes,  10  J.  \l.  231  ;  or  to  prove  that  the  present  holder  of  the  bill  or  note  is 
not  a  bona,  fide  holder.     Povvel  v.  Waters,  17  .1.  R. ;  8  Cowen,  670,  S.  C. 

So,  where  the  note  or  bill  is  indorsed  without  recourse,  the  indorser  is  a  compe- 
tent witness.     Mott  V.  Hicks,  1  Cowen,  535  ;   15  .1.  R.  1. 

Bat  in  Herrick  v.  U  hitncy,  15  J.  R.  240,  where  the  note  was  made  payable  to 


120 


Of  the  Nature  of  the  Interest 


[Ch.  8. 


Kclmonds  v 
Lowe,  ac- 
ceptor,  lia 
hie  lo  ill- 
deniiiilv. 


Case  of  #it  ^y^as  licld  ill  the  case  of  Buckland  v.  Tankard,  ( 1 )  that  in 

Buck/and  .  .  ,  ■      i  c 

v.Tavkard.  ail  actioii  by  an  endorsee  aganist  the  acceptor,  the  mnorser  oi 
[  *127  j  a  bill  was  incompetent  lor  the  defendant  to  prove  that  he  in- 
dorsed the  bill  to  the  plaintilf,  upon  trust  to  enable  him  to  ob- 
tain payment  from  the  defendant  on  account  of  the  witness 
himself,  and  not  for  any  consideration,  or  with  intent  to  con- 
vey any  interest  on  the  bill.  The  reason  given  for  the  re- 
jection of  the  witness  was,  that  if  the  plaintitf  succeeded,  the 
witness  would  be  put  to  much  greater  difficulty  in  getting 
back  his  money  than  if  the  plaintiff  were  defeated  ;  but  the 
principle  of  the  decision  appears  doubtful.  We  have  seen, 
that  in  the  case  of  Edmonds  v.  Lowe,  (2)  which  was  an  ac- 
tion by  an  endorsee  against  the  drawer  of  the  bill,  the  accep- 
tor was  held  incompetent  for  the  defendant  to  prove  that  the 
plaintitf  had  received  the  bill  from  him  upon  condition  that 
he  should  get  it  discounted,  and  that  he  had  not  done  so  ;  but 
this  was  upon  the  special  ground,  that  under  the  circumstan- 
ces of  that  case  the  acceptor  would  have  been  liable  to  in- 
demnify the  defendant  against  the  costs,  if  the  plaintiff  ob- 
tained a  verdict. 

In  an  action  by  the  indorsee  against  the  indorser  of  a  pro- 
missory note,  the  maker  is  a  competent  witness  for  the  plain- 
tiff, for  if  the  plaintiff  succeeds  the  witness  will  be  liable  to 
the  defendant,  and  if  the  defendant  succeeds  the  witness  will 
still  be  liable  to  the  plaintiff :  and  his  liability  to  the  one  can- 
not exceed  his  liability  to  the  other.  (3)  And  the  maker  is 
also,  on  the  same  ground,  a  competent  witness  for  the  defen- 
dant;  as,  to  prove  that  the  date  of  a  note  had  been  alter- 
ed. (4)  («)  But  it  has  been  ruled,  that  in  an  actioii  on  a  bill 
against  the  drawer,  the  acceptor  is  not  competent  for  the  defen- 


IMaker  of 

fironiissory 

note. 


Acceptor  o 

bill. 


(1)  5T.  R.  578. 

(2)  8  B.  &  C.  407.     Supra,  p.  105. 

(3)  Venning  v.  Shuttleworth,   Bayly 
oil  Bills,  4th  edit.  536. 


(4)  Levy  v.  Essex,  Chit.   Bills,    413, 
7th  edit. 


hearer,  the  payee  was  considered  incoiripetsnt  to  testify,  that  he  transferred  tho 
note  lo  a  third  person  wiiliout  recourse  to  him  ;  the  witness  would  be  liable  on  an 
implied  warranty  that  the  note  was  genuine.     See  also  16  J.  R.  101. 

\\  here  the  endorsee  sues  the  maker,  the  endorser  is  not  competent  lo  testify  that 
he  pledged  the  note  as  collateral  security  only,  although  the  defence  related  to  ihe 
amount  of  damages  which  the  plaintiti"  was  enliiled  to  recover  ;  the  indorser  hav- 
ing given  a  release  of  his  interest.     Knights  v.  Putnam,  S  I'ick.  184. 

(a)  tjee  .Abal  v.  Rion,  9  Mail.  R.  46.5  ;  Skelding  r.  Warren,  15  .T.  R.  275  ; 
Ilubbly  V.  Brown,  16  id.  70.  The  case  of  Pierce  v.  I5uiler,  14  Mass.  303,  is  dif- 
ferent. And  in  Hartford  Bank  v.  Barry,  17  id.  94,  it  was  held,  that  the  maker 
was  not  admissible  to  testify  that  the  note  was  indorsed  by  the  defendant  at  his  re- 
quest ;  it  being  an  accommodation  note.  And  see  the  observations  of  Daggett,  ia 
8  Conn.  R.  319. 

A  parly  to  the  instrument  is  competent  to  prove  facts  happening  after  be  gave  it 
currency,  if  not  interested.     Warren  v.  ftlerry,  3  Mass.  27. 

Where  the  action  was  against  the  indorsers,  it  was  held,  thai  the  maker  was 
competent  to  prove,  that  the  note  was  given  in  the  name  of  the  firrii  by  one  of  the 
partners  for  liis  own  private  debt.     W'illiatiis  r.  Walbridge,  3  Wend.  415. 


Ch.  8.  J  which  disqualifies.  121 

daiit  to  establish  a  set-ofF,  arising  upon  a  bill  accepted  by  the 
plaintiff  and  indorsed  by  the  witness  to  the  defendant,  on  the 
ground  that  the  witness  would  be  answerable  to  the  drawer 
only  to  the  amount  recovered  by  the  plaintitf.  (5) 


*CHAPTEFx.  IX.  [  *128  ] 

OF    CEKTAIN  EXCEPTIONS  TO  THE   GENERAL  RULE   ON  THE   SUBJECT 
OF    INTERENT. 

It  has  been  stated,  as  a  general  rule,  that  all  persons  who 
gaining  or  losing  by  the  event  of  a  cause  are  incompetent  to 
give  evidence.  To  this  general  rule,  however,  there  are  sev- 
eral exceptions,  [a] 

Some  of  these  exceptions  depend  upon  acts  of  parliament : 
as,  Avhere  persons  entitled  to  restitution  of  stolen  goods,  in- 
formers, inhabitants  of  parishes  and  other  districts,  are  by  ex- 

(5)   Mainwariiig  V.  I^Iytton,    1    Stark,  this  vvniilc!  be  tlie  cnse  ;  but  in  IMainwnr- 

83.     In  Bayly  on  Bills,  4tli  edit.  540,  it  iiig  v.  RIyiton,  the  set-off  arose  on  a  bill 

is  observed  on  ibis  case,     "that  if  the  indorsed  by  the  vvitrie?s  to  the  defendant ; 

drawer  be  protected  against    tlie    iiolder  and  if  the  second    bill    was    indorsed  to 

by  a  cross  demand    against    the    liolder,  the  defendant,  by  way  of  satisfaction  or  \ 

qucsre,    whether   such    cross    demand,  security  for  the  amount  of  the  first,  it  is 

when  set-oil",  is  not   equivalent   to    pay-  clear,  if  the  defendant  ol)tairied  the  ben- 

ment  ?     And  will  not  the  drawer  be  en-  efit  oi'  it  by  way  of  set-off  in   an  action 

titled  to  call    on  the  acceptor  for  the  fidl  on   the  first   bill,  i)e  could   not  sue  the 

amount  of  the  bill,  as  much  as  if  be  liad  witness,   as   he   might   have  done,  if  he 

paid  the  full    amount    in   money  ?"     In  had  been  compelled  to    pay  the  fitst  bill 

an  ordinary  case  of  set-otr,    no    doubt,  from  his  own  resources. 

(a)  In  courts  of  prize,  no  person  is  incon)petent  on  the  ground  of  interest.  3 
Wheat  435.  Seamen  are  admitted  to  testify  for  each  other,  although  they  have  a 
common  interest  in  the  point  in  contest.  1  Fet.  Adin.  R.  211.  In  any  case  where 
they  have  not  a  direct  interest  in  the  event  of  the  suit.  'H  J.  R.  518.  If  the  ques- 
tion be  the  loss  of  the  ship — embezzlement  equally  affecting  the  whole  crew — neg- 
ligence, misfeasance,  or  malfeasance,  to  which  all  must  contiihule  in  damages,  one 
of  the  crew  cannot  lie  admitted  to  testify  for  another.  1  I'ot.  Ad.  R.  211. 

Sah'ors — Salvage  cases  constitute  one  of  the  class  of  excepted  casej  from  the 
ordinary  rule  of  evidence,  by  which  a  party  is  not  permitted  to  testify  in  his  own 
cause.  But  the  exception  arises  from  the  necessity  of  trusting  to  that,  or  of  being 
left  without  proof  ;  for  in  many  cases  no  persons  exist,  who  can  testily  to  facts.  A 
mere  I'ormal  release  would  not  in  substance  vary  the  legal  credibility  of  such  testi- 
iriony,  whatever  it  might  do  as  ta  its  competency.  Salvors,  then,  are  ex  iiecexsi- 
tate  admitted  as  witnesses  to  all  facts,  which  are  deemed  peculiarly  or  exclusively 
within  their  knowledge.  To  other  facts  they  are  incompetent.  Per  Story,  1  Sumn 
R.  4i>0  ;  id.  p.  329. 

A  merchant  or  other  person  who  makes  tlie  original  entries  in  his  books,  is  per- 
mitted, according  to  the  practice  in  most,  if  not  all  of  the  New  I'.nglaiid  states,  to 
make  his  supplementary  oath  respecting  the  charges.  3  Pick.  101)  ;  4  S.  &  R.  3  ; 
4  J.*awlf;,  407. 

It  i-  dillerent  in  New  York  ;  ilierc,  the  honk  is  verified  by  the  clerk,  or  if  the 
parly  has  no  clerk,  liy  persons  with  whom  |)laiiitiir  has  hid  dfaliiigs  who  testify 
that  he  keeps  fair  and  honest  bonks.      11  Wend.  .^(iS  ;    12  .1    11.  4(Ji. 

In  Vermont,  by  statute,  both  parties  are  admitted  to  testify  in  actions  on  book 
accounts  ;  and  each  has  a  right  to  reriuire  the  testimony  of  the  oiher.  2  Aik.  R. 
464. 

16 


122  Of  Exceptions  to  the  Rule  of  Interest.         [Ch.  9. 

press  enactment,  or  by  necessary  implication,  rendered  com- 
petent witnesses  in  proceedings,  in  the  issue  of  which  they 
are  interested.  Other  exceptions  arise  from  necessity  or  a 
principle  of  public  policy :  as,  where  evidence  is  received 
from  agents,  factors,  or  servants, — notwithstanding  that  they 
may  gain  or  lose  by  the  event  of  the  particular  cause,  in 
which  their  testimony  is  required. 

Objections  on  the  ground  of  interest,  proceed  upon  the  sup- 
position of  an  undue  bias  in  the  mind  of  the  witness,  and  on 
the  public  utility  of  rejecting  partial  testimony.  The  pre- 
sumption of  bias  may  be  taken  ofl'  by  shewing,  that  the  wit- 
ness has  an  equal  or  a  greater  interest  the  other  way,  or  that 
he  has  given  up  what  interest  he  had.  And  the  presumption 
[  *129  ]  of  public  *utility  may  be  answered  by  shewing,  that  it  would 
be  very  inconvenient  under  the  particular  circumstances,  not 
to  receive  such  testimony.  (1) 

In  the  last  chapter,  we  have  seen  in  what  cases  the  bias, 
which  is  presumed  to  arise  in  the  mind  of  a  witness  interested 
on  one  side  of  a  particular  cause,  may  be  removed  by  shew- 
ing that  such  interest  is  counterbalanced  by  an  equal  or  a  great- 
er interest  on  the  other  side.  In  the  present  chapter,  it  is  in- 
tended to  consider  the  particular  cases,  in  which,  on  princi- 
ples of  public  policy  and  utility,  the  admission  of  interested 
witnesses  is  allowed  by  the  provisions  of  acts  of  parliament, 
or  by  the  decision  of  Courts  of  Law. 

One  of  the  most  ordinary  cases  of  exception  to  the  general 

rule  of  interest  arises  in  the  case  of  the  owner  of  stolen  goods 

prosecuting  the  offender  by  conviction. 

Owner  of         By  the  statute  7  &  8  Geo.  4  c.  29,  s.  57,  it  is  enacted,  that 

^!>ods  enii-  in  order  to  encourage  the  prosecution  of  offenders,  if  any  per- 

tie.itores-  SOU  suiltv  of  auv  felouy  or   misdemeanor,    mentioned  in  the 

titUllOIl  tO  J  J  J  '  ^ 

statute,  in  stealing,  taking,  obtaining,  convertnig,  or  knowing- 
ly receiving  any  property,  shall  be  indicted  for  such  offence  by 
or  on  behalf  of  tlie  owner  of  the  property,  or  his  executor  or 
administrator,  and  convicted  thereof,  the  property  shall  be  re- 
stored to  the  owner  or  his  representative  :  and  a  summary 
power  is  given  to  the  Court  to  award  restitution.  Under  this 
enactment,  the  party  entitled  to  restitution  has  a  direct  inter- 
est in  procuring  a  conviction  :  but  notwithstanding  this  in- 
terest, he  is  a  competent  witness.  This  exception  is  found- 
ed upon  the  policy  and  intention  of  the  statute,  which  gives 
the  right  of  restitution :  for  the  intention  of  the  act  was  to 
facilitate  the  conviction  of  criminals  by  holding  out  an  addi- 
tional inducement  to  parties  aggrieved  to  prosecute  :  and  if 
the  Courts  were  to  determine  that  the  right  to  restitution  pro- 
duced incompetency,  the  consequence  would  be,  that  instead 
of  the  conviction  of  criminals  being  facilitated,  it  would  be 

(1)     By  Lord  Mansfield,  1  Burr.  422. 


Ch.   9.j         Of  Exceptions  to  the  Rule  of  Interest.  123 

rendered  more  difficult,  from  *tlie  want  of  proper  evidence.  [  *130  ] 
It  is  also  observable,  that  the  statute  21  H.  8,  c.  11,  which 
first  gave  right  of  restitution,  directs  that  it  shall  be  awarded 
in  those  cases  where  the  felon  shall  be  attainted,  "  by  reason 
of  evidence  given  by  the  party  robbed,  or  owner  of  tlie  mon- 
ey, &c.,  or  by  any  other  by  his  procurement ;"  thereby  ex- 
pressly recognizing  the  competency  of  the  owner  as  a  wit- 
ness. (1)  And  although  the  modern  statute  does  not  contain 
these  words,  yet  its  policy  is  the  same,  and  the  object  of  the 
enactment  is  expressly  stated  to  be  "in  order  to  encourage 
the  prosecution  of  offenders." 

We  have  seen,  that  in  the  case  of  an  indictment  under  Restitntion 
the  statutes  relative  to  forcible  entries,  the  right  of  the  tenant  and  land— 
to  an  award  of  restitution  of  the  lands  is  an  interest  which  ^"^imcuon. 
renders  him  incompetent.  (2)  The  reason  for  this  distinction, 
between  the  effect  of  a  right  to  restitution  of  land  and  that  of 
a  right  to  restitution  of  goods,  is  that  the  statutes  relative  to 
forcible  entries  do  not  contain  any  provisions  which  expressly 
or  impliedly  recognize  the  competency  of  the  tenant ;  and 
there  is  not  the  same  ground  of  public  policy  requiring  the 
reception  of  his  evidence.  An  indictment  for  a  forcible  entry 
may  be  prosecuted  at  common  law,  and  upon  such  an  indict- 
ment, the  tenant,  not  being  entitled  to  restitution,  would  be 
a  competent  witness  ;  less  impediment  therefore  to  the  satis- 
faction of  public  justice  arises  from  excluding  his  evidence 
upon  an  indictment  under  the  statutes.  (3)  Upon  these 
grounds  it  was  decided,  after  consideration,  by  the  Court  of 
King's  Bench,  in  the  case  i?e:r  v.  Williams,  [A.)  that  there 
was  no  sufficient  reason  for  establishing  an  exception  to  the 
general  rules  of  evidence  in  the  case  of  a  statutable  indictment 
for  a  forcible  entry,  and  that  the  tenant,  being  interested,  was 
therefore  an  incompetent  witness. 

A  variety  of  statutory  rewards  were  formerly  payable,  upon  Persons  en- 
the  conviction  of  criminals,  to  persons  who  had  been  active  in  |^'j|^jj, '° ''®' 
apprehending  them  and  procuring  their   conviction  ;    and  it 
was  *always  held  that  persons  entitled  to  these  rewards  were  ["  *1H1  ] 
not  incompetent  witnesses.  (1)     This  was  upon  the   principle 
that  the  exclusion  of   their    testimony  would  be   inconsistent 
with  the  policy  and  spirit  of  the  statutes  giving  the  rewards, 
for  (as  in  the  case  of  restitution  of  goods  before-mentioned) 
the  object  of  the  legislature  was  to  stir  up  greater  vigilance 
in  the  apprehension  and  prosecution  of  criminals,    which  in- 
tention would  be  defeated,  if  the  expectation  of  a  reward  were 
to  disqualify  a  witness,  who  would  otherwise  have  been  com- 

(1)  Ter  Parke,  J.,  9  B.   &  C.  550,         (4)  9  B.  &  C.  549. 

and  see  p.-r  iSayly,  .T.,  ib.  557.  (1)  v'^ee  Rudd's  case,  Leach,  Cr.  Ca. 

(2)  ,S'«;)ra,  p.  66.  157,  15S,  3.-j3,  n.       Hawk.  P.  C.  b.  2, 
(3J  See  per  Bayly,  J.,  9  B.  &  C.  560.     c.  46,  s.  135. 


124  Of  Exceptions  to  the  Rule  of  Interest.       [Ch.  9. 

siaiuiory     pcteiit.  (2)  So  whcrc,  instead  of  a  pecuniary  reward,  a  pardon 
iJdrioii.       is  offered  i)y  the   statute  to  any  person  guilty  of  a  particular 
offence  in  case  another    person   should  be  convicted  upon  his 
evidence,  the    party  expecting  the   pardon  is  competent,  such 
being  the  evident  and  express  intention  of  the  legislature.  (3) 
Trial  for  Upou  the  samc  ground  in  actions,  or  prosecutions  for  bribery, 

bribery.       ^^  j^  ^^  objcctiou  to  a  wituess  that  he  has  been  guilty  of  bri- 
bery himself,  and  will  be  entitled  to  an  indemnity  under  the 
discovery  clause  of  the  2  Geo.  2,  c.  24,  (4)  in  case  of  the  con- 
viction of  the  defendant,  against  whom  he  is  called  as  a  wit- 
ness. (5)     In  these  cases,  as  observed  by  Lord  Ellenborough, 
the  statute  gives  a  parliamentary  capacitation  to  the  witness, 
notwithstanding  his  interest  in  the  result  of  the  cause  ;    for  it 
is  not  probable,    the  legislature  would  intend  to  discharge  an 
offender  upon  his  discovering  another  so  that  the  latter  might 
be  convicted,  without  intending  that  the  discoverer  should  be  a 
competent  witness.  (6) 
Informers.         We  have  seeu  that  informers,  who  are  entitled  to  the  whole 
or  any  part  of  a  penalty,  are  in  general  incompetent  witnesses 
in  support  of  any  proceeding  instituted   for  the  recovery  of 
[  *132  ]  such  ^penalty.  (1)      But  in  the  case  of  Rex  v.  Teasdale  (2) 
it  was  ruled    by  Lord    Kenyon,   that  in  an  indictment  under 
the  statute  21  Geo.  3,  c.  37,  s.  1,   for  exporting  machinery,  an 
informer,  who  was  entitled  to  the    penalties  imposed   by  the 
statute,   was  a  competent  witness,  although  there  Avas  no  ex- 
press provision  in  the  act  for  admitting  his  evidence.     In  this 
case  the  informer  appears  to  have  been  considered  competent 
upon  the  same  principle  as  the  discoverer  in  cases  of  bribery  ; 
namely,  by  necessary  intendment  from  the  statute   imposing 
the  penalties,  and  in  order  to   give  effect  to    its  enactments. 
Where  a  statute  can  receive  no  execution  unless  a  party  inter- 
ested be  a  witness,  there,    says  C.  B.  Gilbert,   he  must  be  al- 
lowed,   for  a  statute  must  not  be  rendered  ineffectual  by  the 
impossibility  of  proof.  (3) 
R.  V.John-      On  a  prosecution  under  the  statute  23  Geo.  2,  c.  13  s.  1,  for 
son,   R.  V.  seducing  artificers  to    go  out  of  the  kingdom,  the  prosecutor 
Lucknp.      ^^^^  ^^j^  competent,  though  entitled   to  a  moiety  of  the  pen- 
alty. (4)  And  on  a  prosecution  under  the  statute  9  Ann.  c.  14, 
s.  5.  the  loser  of  money  at  cards  was  held  competent  to  prove 

(2)  See  9  B.  &  C.  556.      10  Mod.  (5)  Section  8.      A  similar  enactment 
193.  is  contained   in  the  Municipal   Corpora- 

(3)  Per  cur.  Rudd's  case,  1  Leach,  tion  Reform  Act,  6  VV.  4,  c.   76,  sect. 
134,  and  see  statutes  10  &  H   W.  .3,  c.  55. 

23,  s.  5,  and  5  Ann.  c.  31,  s.   4,  (now         (6)  See  4  East,  183,  and   by  Denni- 

repealcd).  son,  J.,  Sayer,  289. 

(4)  IJusli    V.    Railing,    Sayer,    289.         (1)   Supra,  p.  66. 
Phillips  V.  Fowler,  cit.  tb.  291.      How-         (2)  3  Esp.  N.  P.  C.  68. 
ard  V.  Shipley,  4  East,   180.      Mead  v.         (3)  Gilb.  Evid.   114. 

Robinson,  Willes,  425.    Sutton  v.  Bish-         (4)  R.  v.  Johnson,   Willes,    425,   n. 
op  Bur.  2283.  (c.) 


Ch.  9.  j        Of  Exceptions  to  IIlc  Rule  of  Interest.  125 

his  loss.  {5)  But  it  appears  tliat  these  cases  are  not  to  he 
considered  as  exceptions  from  the  general  rule  upon  interest  ; 
for  the  penalties  imposed  by  the  statutes  are  not  recoverable 
by  force  of  a  conviction,  but  only  by  means  of  a  distinct  suit, 
in  which  the  conviction  would  not  be  evidence  ;  and  there- 
fore the  witness  is  wholly  free  from  interest  in  the  event  of 
the  prosecution,  which  will  neither  advance  nor  prejudice  his 
right  to  the  penalties.  (6) 

Besides  the  cases  above  noticed,  in  which  the  evidence  of  "gjj\*;[,,^^''' 
interested  witnesses  is  admitted  in  furtherance  of  the  intention 
of  some  act  of  parliament,  there  are  a  variety  of  other  cases 
in  which  interested  witnesses  are  made  competent  *by  ex-  [  *133  ] 
press  enactment  to  this  effect.  Many  of  these  enactments  au- 
thorize the  admission  of  the  inhabitants  of  particular  districts 
as  Avitnesses  upon  trials,  in  the  event  of  which  the  general 
body  of  the  inhabitants  of  the  district  are  interested.  In  these 
cases,  the  interest  of  any  individual  inhabitant  (although  suf- 
ficient to  exclude  him  at  common  law)  must  be  very  trifling, 
and  the  various  statutes  alluded  to,  have  been  made  in  order 
to  obviate  the  great  inconvenience,  that  Avould  result  from  ex- 
cluding all  the  inhabitants  of  the  districts. 

On  an  indictment  for  not  repairing    a  public  bridge    or  the  inhabuanis 

...  ,.    .     .  1  •     1      1  •  r      -I  -of  county, 

highway  adjoinmg,  the   inhabitants  of  the    county,  town,  ri-  &c.,  non- 
ding,  &c.   in  which  such  bridge  is  situated,  are  rendered  com-  f^P?"" "' 
petent  witnesses  by  the  statute  1  Ann.  st.  1,  c.  18,  s.  13.  (1) 

In  an  action  against  the  hundred  on  the  statute  of  Winton,  """'ifeci. 
by  a  party  who  had  been  robbed,  the  inhabitants  of  the  hun- 
dred were  rendered  competent  witnesses  for  the  defence  by 
the  statute  8  Geo.  2,  c.  1(3,  s.  15.  The  party  robbed  was  al- 
ways considered  to  be  a  competent  witness  ex  necessitate,  (2) 
for  it  would  be  useless  to  give  him  the  right  of  action,  if  he 
were  not  admitted  as  a  witness  to  speak  to  facts,  which  in 
general  no  person  could  be  expected  to  speak  to  but  himself. 

By  the  modern  statute  relative  to  actions  against  the  hundred 
for  injuries  arising  from  riotous  assemblies,  (3)  it  is  enacted, 
"  That  in  any  action  to  be  brought  by  virtue  of  this  act 
against  the  inhabitants  of  any  hundred  or  other  like  district, 
or  against  the  inhabitants  of  any  county  of  a  city  or  town,  or 
of  any  such  liberty,  franchise,  city,  town,  or  place,  as  is  there- 
in mentioned,  no  inhabitant  shall  by  reason  of  any  interest 
arising  from  such  inhabitancy,  be  exempted  or  precluded  from 
giving  evidence  either  for  the  plaintiff  or  for  the  defendants." 

(5)  R.  V,  Luckup,    Willes,    425,    n.  (1)  Even  before  tlie  statute  siicli  evi- 

(c. )  dence  liad  hneii  thought  admissible  froni 

(G)   See   9  15.  &  C  Ij-jT,   by    liayly,  necessity.    See  R.  «.  (Jurpenler, '2  Shovv- 

.r.,  who   appears  to  have  considered  that  er,  47.       1  Venlris,    351.       (iilb.  Evid. 

the  adtnissihility  of  tiie  witnesses   in  R.  11.3. 

r.  liuckup  and  R.  )'.  .lohnsoit   was  con-         (2)  See  Bui.  N.  1'.  187. 
lined  to  cases  of  iiidiclrnents.  (3)  7  <S:  8  Geo.  4,  c.  31 ,  s.  5. 


126  Of  Exccpiions  to  the  Rule  of  Interest.         [Ch.  9. 

f%'i''>l 'i       *^^^  actions  against  churchwardens  or  overseers  of  a  parish 

L      '^'   -I  for   mispending    money  collected  by  them  on  behalf  of  the 

poor,  parishioners,  who  do  not  receive  alms  or  other  gift  out  of 

the  parochial  funds,  are  made  competent  witnesses  by  statute 

3Ay.  &M.  c.  11,  s.  12. 

So  also  in  cases  where  pecuniary  penalties,  imposed  on  any 
offence,  are  directed  to  be  applied  to  the  use  of  the  poor,  or  for 
the  benefit  and  exoneration   of  the  parish  or  other  place,    in- 
habitants are  rendered  competent  witnesses  on  the  trial  of  the 
otiender  by  statute  27  Geo.  3,  c.  29,  provided  the  penalty  does 
Summary     ^^^^  excccd  20Z.       Aud  in  the  case  of  summary  convictions, 
convictions  under  the  provisions  of  the  statutes  7  &  8  Geo.  4,  c.  29,  and 
ires'm'ider     7' &  8  Goo.  4,  c.  30,  tlic  evidence  of  the  party  aggrieved  shall 
4'^^'9^"^°ci  ^^  admitted  in  proof  of  the  offence,  and  also  the  evidence  of 
c.'so."         any  inhabitant  of  the  county,  riding,  or  division,  in  which  the 
offence  shall  have  been  committed,  notwithstanding  any  pen- 
alty or  forfeiture  incurred  by  the  offence  may  be  payable  to 
the  general  rate  of  such  county,  riding,  or  division.  (1) 
Highways.        By  the  general  rule  of  law,  the  rated  inhabitants  of  a  par- 
ish, indicted  for  not  repairing  a  highway,  are  not  competent  to 
give  evidence  for  the  parish.  (2)      But  by  the  recent  statute 
for  consolidating  the  laws  relating  to  highways  (not  turnpike,) 
it  is  enacted,    "  That  no  person  shall  be  deemed  incompetent 
to  give  evidence,  or  be  disqualified  from   giving  testimony  or 
evidence,  in  any  action,  suit,  prosecution,    or  other  legal  pro- 
ceeding to  be  brought  or  had  in  any  Court  of  Law  or  Equity, 
or  before  any  justice  or  justices  of  the  peace,  under  or  by  virt- 
ue of  this  act,  by  reason  of  being  an  inhabitant    of  the  par- 
ish in  which  any  offence  shall    be   committed,  or  of  being  a 
'treasurer,  clerk,  surveyor,  district  surveyor,  assistant  surveyor, 
collector,  or  other  officer  appointed  by  virtue  of  that  act."  (3)  (6) 

(1)  See  sect.  64  of  the  former  statute         (2)  See  15  East,   474,  and  by  Lord 
and  sect.  29  of  the  latter  :    Where    the     Ellenborough,  1  B.  &  Aid.  66. 
party  aggrieved  is  admitted  as  a  witness,  (3)   Stat.  5  &  6  W.  4^  c.  50,  s.  100. 

he  is  not  to  receive  any    portion   of   the 
penalty.     Sect.  66.  &  32. 

(a)  Any  inhabitant  of  a  town  may  be  a  witness  by  statute,  where  a  town  is  a 
party,  or  interested  in  the  event  of  the  suit.     3  Pick.  356. 

Members  of  parishes  and  school  districts  are  admitted  as  witnesses  without  a  re- 
lease. 6  N.  H.  R.  164.  A  committee-man  for  a  school  district  was  admitted  to 
testify  as  to  the  contract  made  by  him,  and  to  the  fact  of  the  keeping  of  the  school; 
for,  being  a  public  agent,  he  is  not  personally  liable  on  the  contract.  15  Pick.  35. 
See  also  5  Conn.  426  and  4  Paige's  Ch.  R.  510. 

For  other  cases  where  the  inhabitants  of  towns,  parishes,  &c.  have  been  admit- 
ted as  witnesses  see  ante  p.  48,  note  (a)  and  p.  49  note  (b)  and  note  (a);  and  p. 
50  note  (a.) 

{h)  Surveyors  of  highways,  when  liable  to  pay  damages  arising  from  highways 
being  out  of  repair,  are  incompetent  witnesses  for  the  town.  6  Verm.  369.  And 
the  Selectmen  cannot  release  their  interest,  unless  authorised  so  to  do  by  a  vote  of 
the  town.  id. 


Oh.  9.  J         Of  Exceptions  to  the  Rale  of  Interest.  127 

*By  the  general  Turnpike  Act,  (1)  it  is  also  enacted,  That  Turnpike 
the  inhabitants  of  any  parish,  township  or  place,  in  which  \  *i25  1 
any  offence  shall  be  committed  contrary  to  that  act,  shall  not 
be  deemed  incompetent  witnesses  by  reason  of  their  being 
such  inhabitants.  And  by  a  subsequent  statute,  (2)  it  is  en- 
acted, That  no  person  shall  be  deemed  incompetent  to  give 
evidence  in  any  action  or  other  proceeding  at  law  or  equity, 
or  before  any  justice  under  or  by  virtue  of  any  act  for  making 
or  maintaining  any  turnpike  road,  or  under  that  act  or  the  act 
of  3  Geo.  4,  by  reason  of  being  a  trustee  or  commissioner  of 
such  road,  or  a  mortgagee  or  creditor  of  the  tolls  thereof,  or  a 
former  lessee  or  collector  of  snch  tolls,  or  a  treasurer,  or  clerk, 
or  surveyor,  or  other  officer  under  such  act. 

It  will  be  observed,  that  the  provisions  respecting  the  com- 
petency of  inhabitants,  which  have    been    hitherto    noticed, 
only  apply  to  a  few  particular  cases,  in  which  questions  arise 
affecting  the  interests  of  jDarishes  and  other  districts.     But  in  Qups,io„g 
order  to  provide  more  effectually  against  the  inconvenience  of  relating  to 
excluding   the    testimony  of  the  inhabitants  at  large,    upon  sel*^'&,"'*' 
questions  of  this  nature,  a  more  general   provision  was  made 
by  the  statute  54  Geo.  3,  c.  107. 

By  the  9th  section  of  this  statute,  it  is  enacted  "that  no 
inhabitant  or  person  rated,  or  liable  to  be  rated  to  any  rates  or 
cesses  of  any  district,  parish,  township,  or  hamlet,  or  wholly 
or  in  part  maintained  or  supported  thereby,  or  executing,  or 
holding  any  office  thereof  or  therein,  shall  before  any  court  or 
person  or  persons  whatsoever  be  deemed  and  taken  to  be  by 
reason  thereof  an  incompetent  witness  for  or  against  such  dis- 
trict, parish,  township,  or  hamlet,  in  amj  matter  relating  to 
such  rates  or  cesses  ;  or  to  the  boundary  between  such  dis- 
trict, parish,  township,  or  hamlet ;  or  to  the  settlement  of  any 
pauper  in  such  district,  parish,  township,  or  hamlet ;  or  touch- 
ing any  bastards  chargeable,  or  likely  to  become  chargeable  to 
such  district,  &c.,  or  to  the  recovery  of  any  sum  or  sums  for 
the  charges  or  maintenance  of  such  bastards ;  or  the  election 
or  appointment  *of  any  officer  or  officers,  or  to  the  allow-  r  *136  1 
ance  of  the  accounts  of  any  officer  or  officers  of  any  such  dis- 
trict, parish,  township,  or  hamlet ;  any  law,  usage,  statute,  or 
custom,  to  the  contrary  in  anywise  notwithstanding." 

This  enactment  has  given  rise  to  many  questions,  and  the  M^rednhv. 
decisions  upon  its  construction  have  been  rather  contradictory,  ^'^'p^ 
One  of  the  earHest  cases  which  arose  after  the  passing  of  the 
act,  was  an  action  of  trespass  against  the  overseers  of  a  town- 
ship, in  which  the  question  was,  whether  certain  lands  were 
vested  in  the  overseers  under  a  local  act  of  jxarliament  ;  and 
the  Court  of  Exchequer  decided,  that  a  rated  inhabitant  of 
the  township  was  not  an  incompetent  witness  on  the  part  of 

(1)  3  Geo,  4,  c.  12fi,  s.  137.  (2)  -1  Geo.  4,  c.  95,  s.  S4. 


om. 


12S  Of  Exceptions  to  the  Rule  of  Interest.         [Ch.  9. 

the  defendants,  although  tlie  lands  in  question,  if  vested  in 
the  defendants  Avonld  be  vested  in  trust  for  the  township  and 
in  aid  of  the  poor  rates.  The  Court  considered  that  the  stat- 
Marsden  v.  "^^  should  roceive  a  liberal  construction,  and  that  the  matter 
tatansjeid.  in  issuo  related  to  the  rates.  (1)  In  a  subsequent  case  in  the 
King's  Bench,  it  was  decided,  that  upon  an  issue  directed  by 
the  Court,  for  the  purpose  of  trying  whether  a  certaui  mes- 
suage was  situated  within  a  chapelry,  a  person  occupying 
rateable  property  within  the  chapelry  was  competent  to  prove 
that  it  was  so  situated.  The  Court  said,  that  the  burthen,  of 
making  out  that  a  witness  was  incompetent,  lay  upon  the  par- 
ty objecting  to  his  testimony,  and  that  nothing  appeared  to 
shew  that  the  witness  would  be  a  gainer,  by  proving  that  the 
messuage  was  within  the  chapelry  ;  and  as  the  witness  was 
oiily  stated  to  be  the  owner  of  rateable  property,  and  not  ac- 
tually rated,  he  was  competent  at  common  law,  on  the  author- 
ity of  Ilej:  V.  Kirclford.  (2)  They  also  said  the  case  was  plain, 
according  to  the  true  construction  of  the  statute,  for  the  sub- 
stantial question  was,  whether  the  owner  of  certain  property 
was  liable  to  contribute  to  the  rates  of  the  chapelry  ; 
and  that  was  a  question  "relating  to  the  rates  or  ces- 
ses" of  the  district.  And  the  question  whether  certain  land 
was  situate  within  the  chapelry,  was  "  a  matter  relating  to 
the  boundary  between  the  district  in  question,  and  the  adjoin- 
ing district."  (3) 
Heude-  *So  also  In  a  latter  case  at  nisi  prius,  it  was  ruled  by  Lord 

^Lnutskm  Tenterden,  that  in  an  action  of  debt  by  a  surveyor  of  high- 
and  /;.  V.  Avays,  against  his  predecessor  in  office,  to  recover  the  penalty 
r  *'i"o'^  I  imposed  by  the  highway  act  for  not  accounting,  inhabitants 
'-  ^  of  the  parish  were  competent  for  the   plaintiff,  although  their 

evidence  would  tend  to  increase  the  funds  in  relief  of  the 
rates.  (1)  Jind  this  case  was  followed  by  another,  in  Avhich 
Lord  Chief  Justice  Tindal  ruled,  that  such  inhabitants  Avere 
rendered  competent  by  the  statute,  upon  an  indictment  for 
the  nonrepair  of  abridge  and  highway  within  the  parish, 
which  it  was  alleged  the  defendant  was  bound  to  repair  ra- 
tione  tenurce.  (2) 
Oxemhn  v.  Ou  the  Other  hand,  it  was  decided  by  the  Court  of  King's 
Palmer.  Beuch  in  the  case  of  O.venden  v.  Palmer,  (3)  that  in  trespass 
against  the  surveyor  of  highways  for  a  parish,  who  justified 
under  a  custom  to  take  shingle  from  the  sea  beach,  for  the 
repair  of  the  roads,  inhabitant  rate-payers  of  the  parish  Avere 
incompetent  to  give  evidence  for  the  defendant  in  support  of 

(1)  Meredith  v.  Gilpin,  6  Price,  146.         (::)   R.  v.  Ilayman,   M.  &•  ^^.  N.  P. 

(2)  2  East,  55;).  C.  -!()1. 

(3)  IMarsden  v.  Stansfield,  7  B.  &  C.         (3)  2  B.  &:  Ad.  23G. 
S15. 

(1)  Heudebouick  v.  Langslon,  i\Iood. 
&  ."ilal.  N.  r.  C.  402,  n. 


Cli.   9.j        Of  Exceptions  to  tlie  Rule  of  Interest.  129 

the  Court,  said,  that  they  entertained  great  doubt  whether 
the  case  oi  Meredith  v.  Gilpin  was  properly  decided,  and  ob- 
served that  the  statute  related  chiefly  to  the  poor,  and  that  al- 
though the  words  of  the  ninth  section,  when  taken  by  them- 
selves, would  seem  to  apply  to  any  rates  or  cesses,  yet  that 
the  Court  thouglit  the  matter  in  question  did  not  strictly  and 
properly  relate  to  rates  or  cesses  of  the  parish. 

So  also,  in  a  subsequent  case,  the  same  Court  decided,  that 
the  rated  inhabitants  of  a  district,  indicted  for  the  non-repair  ^-  \-  ^.^^^'■' 

r       1   •     I  1111  i  op  Auc/c- 

01  a  highway,  were  not  rendered  by  tlie  statute  competent  I'md. 
witnesses  for  the  defence.  (4)  And  it  has  been  also  ruled  at 
nisi  prius  by  Lord  Uenman,  that  in  an  action  for  medical  at- 
tendance on  a  pauper,  against  an  overseer  who  was  defending 
on  the  part  of  the  parish,  and  in  pursuance  of  an  order  of  ves- 
try, that  a  rated  inhabitant,  who  had  signed  such  order,  *was 
not  within  the  statute,  and  rejected  his  testimony  which  was  [  *13S  ] 
oifered  on  behalf  of  the  defendant.  (1) 

But  in  a  recent  ease  at  nisi  prins  it  was  ruled,  on  the  trial 
of  an  ejectment  by  parish  officers  to  recover  a  parish-house, 
that  an  occupier  of  rateable  property  within  the  parish  was  a 
competent  witness  on  behalf  of  the  lessors  of  the  plaintifi',  Mr. 
Baron  Alderson  there  observed,  that  the  statute  enacted,  that 
the  party  should  not  be  incompetent  in  any  matter  relating  to 
rates  or  cesses  ;  and  that  the  only  way,  in  which  his  interest 
could  be  affected,  was  on  the  ground  that  the  recovery  of  the 
property  would  diminish  the  rates  or  cesses.  (2)  Upon  the 
same  case  coming  subsequently  before  the  King's  Bench,  the 
Court  decided  that  the  witness  was  properly  admitted,  appar- 
ently upon  the  ground  that  he  was  competent  at  common 
law,  independently  of  the  statute.  (3) 

(4)  R.  V.  Bishop  Auckland,  1  Ad.  &  consistency,  for  the  olyecting  party  ad- 
Ell.  744.      1  Mood.  &.  Rob.  28(5,  287,  n.  inits  that  tiie  question  relates  to  the  rates 

(1)  Tothell  V.  Hooper,  1  Mood.  &:  and  cesses  of  the  pari.-h,  for  the  purpose 
Rob.  392.  of  disqualifying   the    vvjti.ess.       In    the 

(2)  Doe  V.  Cockell,  6  Car.  &  P.  52.5.  case  of  Oxend'en  v.  Palmer,  vvliich  is  the 
The  case  of  Oxendeii  v.  Palmer  was  ci-  leading  authority  for  the  limited  con- 
ted  in  (his  case.  struction    ol'   the  statute,   some  reliance 

(3)  4  Ad.  &  EH.  478.  The  witness  appears  to  have  been  placed  upon  the 
in  this  case  being  merely  rateable,  and  circumstance,  th-it  the  main  object  of 
not  actually  rated,  appears  to  have  been  the  statute  was  to  provide  for  Cases  re- 
competent  at  common  law  upon  the  au-  specting  the  poor,  but  it  was  admitted, 
thority  of  R.  v.  Kirdford,  2  East,  559,  in  the  judgment  of  the  Court  that 
recognised  by  Bayly,  J.,  in  Marsden  r.  the  language  of  the  ninth  section  was 
Stansfield,  7  B.  i<c  C.  818.  It  was  also  large  enoUgii  to  embrace  objects  not 
argued  in  support  of  the  competency  of  within  the  preamble.  And  it  may  per- 
the  witness,  that  if  the  matter  did  relate  haps  be  noticed  as  an  inconvenience  rc- 
to  the  rates  or  cesses,  he  was  rendered  suiting  from  the  decision  in  Oxenden  v. 
competent  by  the  statute,  and  if  it  did  Paltrier,  and  the  subsequent  cases  in  ac- 
not,  that  he  had  no  interest  whatever,  cordance  with  it,  that  liie  etl'ect  of  the 
Indeed,  in  all  these  cases,  the  objection  construction  adopted  in  those  decisions 
to  the  witness's  competency  afipears  iu  is  to  adtnit  the  testimony  of  the  witnes- 
some  degree  open  to   the  charj^e  of  in-  ses,  where  tlie  interest  is  plain  and   im- 

17 


130  Of  Exceptions  to  the  Rule  of  Interest.       [Ch.  9. 

Oiiicr  ex-  In  local  acts  of  parliament  it  is  not  nnusnal  to  introduce 
sialil'te'.^  "^  clauses,  rendering  rated  inhabitants  of  the  district  competent 
j.ociii  acis,  -^vitnesses  :  and  there  are  also  several  other  exceptions  depen- 
f  *139  1  ^^*'S  *i^pon  particular  statutes,  but  which  are  not  of  sufficient 

general  importance  to  be  here  noticed. 
Keveiuie  It  may  however  bo  observed,  that  upon  proceedings  relative 

anTpenai-  ^^  sciznrcs  and  jienalties  under  the  (Justoms  Act,  6,  Geo.  4,  c. 
lies.  108,  it  is  provided  by  the  fifth  section  of  that  statute,  that  of- 

ficers, and  persons  acting  in  their  aid  and  assistance,  shall  be 
deemed  competent  witnesses,  on  the  trial  of  any  suit  or  infor- 
mation on  account  of  any  seizure  or  penalty  mentioned  in  the 
act,  notwithstanding  that  such  officer  or  other  person  may  be 
entitled  to  the  whole  or  any  part  of  such  penalty. 
Exceptions  In  addition  to  the  statutory  exceptions  hitherto  considered 
faw"roir"'  "1  the  present  chapter,  there  are  some  common-law -exceptions 
ncccssiiy.  to  the  rulc  of  interest,  which  depend  upon  the  principle  of  ne- 
cessity, or  of  public  policy, 
(luesiion  of  Thus,  it  is  laid  down  by  Mr.  Justice  Buller,  that  a  party  in- 
[.u^ieri-i.  ^pj.ggj_^.(|  ^^j^  ^Q  admitted,  where  no  other  evidence  is  reason- 
ably to  be  expected ;  and  this  principle  was  acted  on  in  the 
late  case  of  Lancumv.  Lovell,  (1)  argued  before  all  the  judg- 
es ;  in  which  it  was  decided,  that  in  an  action  for  toll  claim- 
ed on  a  public  road,  persons  who  have  refused  to  pay  the  toll 
were,  from  necessity,  competent  to  give  evidence  against  the 
claim  notwithstanding  their  interest  in  the  result  of  the  cause. 
This  case  arose  before  the  statute  3  &,  4  W.  4,  c.  42,  and  the 
witnesses  were  objected  to,  on  the  ground  that  the  verdict 
might  be  used  as  evidence  against  themselves  in  a  subsequent 
action  for  the  toll  ;  but  the  judges  were  unanimously  of  opin- 
ion, that  the  witnesses  were  competent,  notwithstanding  this 
interest,  upon  the  broad  ground  that  the  claim  was  in  the  na- 
ture of  a  public  right,  in  which  all  the  king's  subjects  were 
interested,  and  that  no  other  evidence  could  be  reasonably  ex- 
pected than  that  of  persons  of  whom  toll  had  been  demand- 
ed.  (2)  (a) 

mediate,  i.  e.    in  cases  where  the  ques-  the  case  of  Lord  Falmouth  «.  George,  5 

lion  "strictly  <ind  properly  relates  to  the  King.  286,  svpra,    savoured   more  of  a 

rates  or  cesses,"  and  to  reject,  their  testi-  jirivatc  right  ;    l)ut   the    distinction  has 

iiiony  where    the   interest  is  more  indi-  become  immaterial,  since  the  3  &  4  W. 

rect  and  remote.  4,  c.  42,  wliich    removes  the    objection 

(1)  9  L>ing.  4G5.  arising  from  tlie  subsequent   use   of  the 

(2)  The  Court  seemed  to   think   that  verdict. 

(h)  a  commoner  is  admissible  to  prove  a  right  of  common  where  the  common 
is  claimed  by  prescription  in  right  of  a  particular  estate  ;  but  in  general  a  common- 
er is  inadmissible  to  prove  a  right  of  common.  Jacobson  v.  Fountain,  2  J.  R. 
175;  Gould  v.  James,  6  Covven,  369. 

The  inhabitants  of  towns  are  incompetent  to  prove  a  custom  for  tiie  inhabitants 
to  dig  clams  in  a  particular  place;  3  Pick.  356;  or  to  prove  a  way,  common,  or  oth- 
er easement;  8  id.  518;  hut  as  lias  been  observed  (ante  p.  48  note  (a)),  an  inhabi- 
tant of  a  state  is  a  compctcut  witness  in  the  action  in  which  the  state  is  a  party. 


Cli.  9.J        Of  Exceptions  to  the  Rule  of  Interest.  131 

*The  admission  of  the  evidence  of  asfents,    servants,    and  Agents, 

cj  /  /  s<f  rv3nls 

factors  has  also  been  considered  as  an  exception  to  the  gener-  &,c.  in  'the 
al  rnle,  depending  upon  pubhc  policy ;  and  Mr.  Justice  Duller  [i^e'rem- 
says  that  this  evidence  is  admitted  "  for  the  sake  of  trade  and  pioyment. 
the  common  usage  of  business."  (1)  Formerly,  when  the  rule  [  *14:0  J 
of  incompetency  was  more  strict  than  in  modern  times,  and 
when  an  interest  in  the  question  in  dispute  was  considered 
as  a  test  of  competency,  without  reference  to  the  inquiry 
whether  the  witness  could  derive  actual  benefit  or  disadvan- 
tage from  the  event  of  the  cause,  the  reception  of  this  de- 
scription of  evidence  was,  properly  speaking,  an  exception  to 
tlie  general  rule.  But  now,  as  the  true  criterion  of  competen- 
cy is,  whether  a  witness  can  derive  any  immediate  gain  or 
loss  from  the  event  of  the  cause,  the  evidence  of  agents,  ser- 
vants, and  factors,  for  the  purpose  of  proving  contracts  made 
by  them  on  behalf  of  their  employers  would,  probably  in  the 
great  majority  of  cases,  be  admissible  under  the  general  rule, 
and  not  by  way  of  exception.  However,  it  is  still  laid 
down  as  an  established  principle,  that  the  evidence  of  agents 
employed  in  ordinary  transactions  of  commerce,  is  admissible 
ex  necessitate,  (2)  notwithstanding  they  may  be  interested  ; 
and  cases  sometimes  arise,  in  which  the  reception  of  their  ev- 
idence could  only  be  warranted  on  this  ground,  {a) 

(1)  See  B.  N.  P.  289.     Fortesc.  247.         (1)   By  Lord   Tenterden,    S  B.  &  C. 
Per  Eyre,  C.  J.,  2  H.   Bl.  591.       Upoa     40S.      By  Parke,  J.,  10  B.  &  C.  864. 
the  statute  of  tliis  and  otlier  exceptions, 
see  Beiuham's  llationule,  b.  9,  c.  3,  vol. 
5,  p.  60. 

~{a)  See  4  M'Cord,  412;  1  Bail.  R.  201;   2  id.  184.  " 

The  general  rule  on  this  subject  seenis  to  be  in  favor  of  admitting  the  agent  to 
testify,  uiiles-i  in  cases  where  tiie  principal  is  sued  on  account  of  the  negligence  of 
the  agent.     I'er  Kennedy,.!.  3  \Vaits  R.  129;  6  Verm.  'MA. 

By  their  own  testimony  they  may  prove  their  authority,  excepting  where  the  np- 
pointiTient  was  in  writing  ;  and  with  few  exceptions  may  be  called  as  witnesses 
generally,  either  for  or  against  their  principals.  8  (ireenl.  443;  ]•  isher  ?;.  VV'illard, 
14  Mass.  379. 

If  a  witness  will  neither  gain  or  lose  by  the  event  of  the  cause,  or  if  the  verdict 
caimot  he  given  in  evidence  for  or  against  hiin,  in  another  suit,  the  objection  goes 
to  his  credit  only,  and  not  to  his  competency.  3  J.  Cas.  M3;  Case  v.  Ifecve,  11 
.1.  R.  81  ;  American  Ins.  (*o.  v.  Rankin,  1  Hall,  GI9.  In  the  latter  case,  it  was 
lield,  that  the  Stevedore  employed  by  the  master  to  load  the  vessel,  was  competent 
to  prove  that  tlie  cargo  was  properly  stowed.     Oakley,  .1.  observes  : — "  He  gains  v 

or  loses  nothing  by  the  event  of  this  suit,  nor  can  the  plaintilf 's  recovery  release 
him  from  his  responsibility  for  any  negligence  committed  by  him,  as  the  acent  of 
the  master.  Nor  can  the  verdict  or  judgment  in  this  cause  bo  given  in  evidence 
for  or  against  hin),  either  to  establish  the  fact  of  sucli  negligenci;,  or  to  ascertain  th(! 
amount  of  damages."  Here,  the  master  was  no  jiarty  to  the  suit,  and  the  fact  of 
negligence  in  the  loading  of  the  cargo,  was  not  dnectly  in  issue. 

A  possibility  of  liability  is  not  sullicienl  to  exclude  the  witness.  Thus,  in 
M'Cready  ».  Schuylkill,  iNav.  <.'o.  3  Whar.  424,  a  person  in  the  defendant's  service 
as  superintendent  was  held  to  be  a  competent  witness  to  show  the  work  properly 
done. 

In  Mauran  v.  Land),  7  Cowcn,  174,  a  hroker  who  was  employed  to  loan  mon- 
ey for  his  principal,  wab  adinitlcd  to  testify  in  an  action  against  the  drawer  of  a 
clicck,  although  his  own  commissions  were  included   in  the  check. 


132  Of  Exceptions  to  the  Rule  of  Interest.       [Ch.  9. 

Factors  and      There  are  many  cases  which  have  been  decided  witli    ref- 

orokers.  ,  •'  i-     n  -,  •  • 

ereiice  to  the  competency  oi  factor  and  agents  to  give  evi- 
dence of  matters  wiihin  the  scope  of  their  employment.  It 
has  been  held,  that  a  factor  may  prove  a  sale  in  the  course  of 
his  employment,  though  he  is  to  receive  a  poundage  on  its 
amount  ;  (3)  or  though  he  is  to  be  entitled  to  what  he  has 
bargained  for  beyond  a  stated  sum.  (4)  And  a  broker,  who 
has  elfccted  a  policy,  is  a  competent  witness,  ex  necessitate, 
to  prove  all  matters  connected  with  the  policy,  notwithstand- 
ing he  may  have  an  interest  arising  from  a  lien  on  the  poli- 
cy. {5){a)  And  it  is  laid  down  by  Eyre,  C.  J.,  that  the  excep- 
L  ^*A  J  jJQj-j  jg  j-^Q|.  confined  *to  mere  agents  and  brokers,  but  that  ev- 
ery man  who  makes  a  contract  for  another,  comes  within  the 
description  :  but  in  a  later  case  it  appears  to  have  been  con- 
sidered by  Lord  Tentcrden,  that  the  principle  of  the  excep- 
tion did  not  apply  where  the  only  agency,  or  connexion  be- 
tween the  parties  arose  out  of  the  particular  transaction  in 
question.  {\){h) 
Servants  It  is  the  coiiimou  practice  to  admit  servants  and  carriers,  to 

ers/*"'"  prove  the  payment  of  a  receipt  of  money,  or  the  delivery 
of  goods,  on  behalf  of  their  master  or  principal.  (2)  Thus, 
if  money  has  been  overpaid  by  a  servant,  or  paid  by 
mistake,  he  is  a  competent  witness  in  an  action  to  recover  it 
back.  (3)(c)  And  where  the  question  was.  whether,  by  the  cus- 

(3)  Dixon  V.  Cooper  3  Wils.  40.  I  (2)  By  Holt,  C.  J.,  11  Mod.  262.  B. 
Atk.  248.  N.  P.  289.     See   4  T.   R.    589,    .590. 

(4)  Benjamin  v.  Porteus,  2  H.  Bl.  Matthews  v.  Haydon,  2  Esp.  N.  P.  C. 
590.     R.  D.,Phipps,  B.  N.  P.  289.  509.     Spencer  v.  Golding,  Peake,  N.  P. 

(5)  Hunter  v.  Leathley,  10  B.  &  C.  C.  129.  Adams  v.  Davis,  3  Esp.  N.  P. 
858.  C,  48. 

(I)  Edmonds  «.  Lowe^  8  B.  &  C  (3)  Martin  t>.  Howell,  1  Stra.  647. 
408.  Barker  «.  Macrae,  3  Campb.  144. 

(a)  See  mIso  1  .1.  Ca.  408;  2  SAX.  189.  A  gcjneral  lien  on  the  proceeds  of  the 
sale  of  goods  belonging  to  the  principal,  is  not  sucli  an  interest  in  the  event  ol"  the 
suit,  ns  ought  to  disqualify  ilie  broker.  2  Hall,  176.  Here,  the  factor  had  a  gen- 
eral lien,  for  a  balance  due  liim  on  the  property  of  the  plaintilTin  his  hands,  but  no 
specific  claim  for  the  payment  of  that  balance  on  the  proceeds  of  the  goods  sold  to 
the  defendants  :     Held,  that  the  factor  was  not  disqualified. 

(6)  But  see  8  Greenl.  443,  where  it  is  said  that  every  person  who  makes  a  con- 
tract for  another,  is  an  agent  within  the  meaning  of  the  rule  admitting  agents  lo  bo 
witnesses  for  their  principals.  However,  in  a  later  c;ise,  the  court  seem  to  uphold 
the  doctrine  in  tlie  text      3  Fairf.  R.  201. 

(c~)  Although  a  cashier,  teller,  or  other  clerk  or  agent  has  given  a  bond  for 
the  faithful  execution  of  tire  duties  of  liis  othce,  or  trust,  he  is  competent  to  testify 
upon  the  same  principle  of  necessity  which  admits  an  agent,  or  servant,  in  the 
common  course  of  his  business;  a  porter  who  has  delivered  goods  of  his  employer; 
a  cartman,  who  has  delivered  goods;  a  common  carrier  ;  a  factor  or  broker,  evea 
where  he  is  to  receive  a  per  centage  for  his  commission.  United  States  Bank  v. 
Stearns,  15  Wend.  314.     See  also  10  J.  R.  273. 

Where  defendants  had  received  a  sum  of  money  for  the  pJaintiff,  and  had  paid 
it  to  IMTormich,  who  was  called  by  defendants  at  the  trial  to  testify  that  lie  was 
authorized  by  the  plaintilf  to  receive  it  :  his  competency  was  objected  to,  but  the 
objection  was  overruled.     P.lack  v.  Goodman,  1  Bail.   R.  201. 

It  was  held  in  au  action   brought    by  the    bank  against  a   customer  lo   recover 


Ch.  9.]        Of  Exceptions  to  the  Rule  of  Interest.  133 


Ajjents  act- 
out  of 


torn  of  a  manor,  a  fine  was  due  to  the  lord   durins;  his  minor-  Steward  of 

.      .  ,  ^  ~  manor. 

ity,  on  tenant's  admission,  the  steward  of  the  manor  was  al- 
lowed to  give  evidence  for  the  lord,  though  it  was  objected 
that  he  would  be  entitled  to  a  fee  on  admission,  which  he 
would  lose  if  the  tenant  were  not  admitted.  (4) 

But  though  agents  and   brokers  are    competent  to  prove  a  Asents  in- 
sale  or  contract  m  the  ordinary  course   oi  their  employment,  u,  disprove 
it  has  been  decided,  that  they  are  not  competent  to  prove  that  negligence. 
a  contract  has  been  properly  executed,    in  an  action  against 
the  principal  for  misconduct   or  negligence.     Thus,  in  an  ac- 
tion against  an  agent  for  misconduct,   in  purchasing  goods  of 
an  inferior  quality,  Lord  Chief  Justice  Gibbs  rejected,    as  an 
incompetent  witness,  the    broker  of  the   defendant,  who    was 
called  to  prove  that  he  had  purchased  goods  of  the  best  quali- 
ty. (5)     And  where  a  person  has  entered  into    a  contract   for 
the  purchase  of  goods  in  his  own  name,  it    has   been  ruled, 
that  he  is  not  a  competent  witness  in  an  action  for  goods  sold 
and  delivered,  *to  prove  that  he  purchased  them  as  the  agent  [  *142  ] 
for  the  defendant.  (1) 

So  also,  where  the  act  of  the  servant  has  been  out  of  the 
ordinary  course  of  his  employment  and  a  mere  breach  of  duty,  scope  of  au 
the  principle  does  not  apply  ;  and  it  has  been  ruled,  that  in  *'^°''"y-  (") 
such  a  case  the  servant  is  incompetent  without  a  release.  Thus 
in  an  action  to  recover  back  money  which  had  been  entrusted 
to  the  plaintiff  for  a  special  purpose,  and  paid  by  the  servant 
in  illegal  insurances,  he  was  considered  incompetent.  And 
before  the  stat.  3  &  4  W.  4,  c.  42,  it  was  considered  as  a  set- 
tled rule,  in  actions  against  a  master  for  the  negligence  of  his 

(4)  Champion  v.  Atkinson,  3  Keb.  317.  See  the  preceding  chapter  as  to 
90.     Rep.  temp.  Hard.  360.  the  effect  of  the  stat.  3  &  4  W.  4,  c.  42, 

(5)  Gevers  v.  Mainwaring,  1  Holt,  N.  s.  26,  on  incompetency  arising  from  lia- 
P.  C.  139.  bility  over. 

(I)  IMcBraine  v.  Fortune,    3    Cnmpb. 

money  overdrawn,  that  the  clerk  wiio  made  tlie  mistake  was  competent  to  testify. 
Union  Bank  v.  Knnpp,  3  Pick-.  9G. 

(a)  A  witness  called  to  testify  (o  facts  out  of  the  usual  course  of  business,  and  to 
deny  and  contradict  the  effect  of  those  acts  which  lie  appears  to  have  done  as  sucii 
agent  does  not  come  witiiin  the  exception  in  regard  to  agents.  7  ftlass.  23;  10 
Pick.  125. 

But  where  a  person  was  hired  to  drive  the  plaintitT's  team;  and  in  his  occupa- 
tion took  a  load  of  tlsh  into  the  couniry  for  sale  ;  and  received  of  the  defendants 
an  order  for  cotton  cloth  in  payment  for  the  fish  sold  tlietii  ;  it  was  held,  that  the 
agent  was  a  competent  witness  for  his  principal  in  a  suit  on  the  order,  which  had 
been  refused  acceptance.  The  suinjr  the  action  was  a  ratification  of  the  doings  of 
the  agent  ;  and  at  the  same  lime  a  discharge  of  the  witness  from  all  liability  lo  the 
principal.     Fisher  v.  Willard,  13  Alass.  379. 

In  the  case  of  the  Franklin  Bank  v.  Freeman,  16  Pick.  53.'5,  a  cashier  of  the 
bank  had  loaned  money  belonging  to  the  bank  upon  mem.  checks  as  security  con- 
ir.iry  to  banking  princijiles;  yet  it  was  held,  that  he  was  competent  to  testify  for 
the  bank,  although  he  had  given  bond  for  the  faithful  discharge  of  his  trust. 

An  agent  having  made  a  contract  for  an  unknown  principal.  Held,  that  in  action 
sued  by  the  other  party  to  the  contract  ag;iiiist  llie  principal,  the  agent  was  not 
competent  lo  testify  for  the  plaintill'to  establish  the  fact  of  his  agency,  without  be- 
ing released  by  the  plaintiff.     1  AFiles,  208. 


134  Of  Exceptions  to  the  Rule  of  Interest.       [Ch.  9. 

servant,  that  the  servant  was  not  competent  to  disprove 
the  fact  of  liis  negligence.  The  cases  on  this  snbject  have 
ah'eady  been  fully  discussed  in  treating  of  incompetency  by 
reason  of  a  liability  over,  and  in  considering  the  effect  of  the 
late  statute  on  this  class  of  cases. 

A  few    other   cases   of  exceptions,    standing  upon  special 
grounds,  may  here  be  noticed. 

Issue  from        Upou  issucs  scut  from  Courts  of  Equity,    it  is  not  an  unu- 

Equiiy.  sual  tiling  to  direct  that  the  parties  to  the  suit  shall  be  exam- 
ined at  the  trial  as  witnesses.  It  jjias  been  said  in  a  case  in 
the  Court  of  Chancery  upon  this  subject,  that  upon  an  order 
of  this  nature  no  objection  is  waived,  except  that  which  arises 
from  the  party  being  plaintitf  or  defendant  in  the  cause.  (2) 
And  it  has  been  ruled  in  a  late  case  at  nisi  prius,  that  where 
a  witness  is  interested  in  the  result  of  a  suit  inequity,  in  con- 
sequence of  the  decree  in  the  suit  being  evidence  for  or 
against  his  own  claims  on  a  subsequent  occasion,  he  is  not 
made  competent,  upon  the  trial  of  an  issue  directed  in  such 

[  *143  ]  suit  by  the  statute  *3  &  4  W.  4,  c.  42,  s.  26,  the  language  of 
which,  as  we  have  seen,  only  applies  to  cases  where  the  ob- 
jection is  "  on  the  ground  that  the  verdict  or  judgment  in 
the  action''^  would  be  admissible  for  or  against  the  witness.  (1) 

Action  for        jt  jj^s  also  been  treated  as  an  exception,  from  necessity,   to 

malicious        ^y  ^  r  ■  f  .  ^  '       .  •         V 

prosecii-      the  rule  of  incompetency  from  interest,  that  in  an  action  for  a 
denc7rf"    J^^J^-licious  prosccution,  the  evidence  which  the  defendant  gave 
prosecutor,  before  the  grand  jury,  in  support  of  the  indictment,   is  under 
special  circumstances  admissible  on  his  behalf  at  the  trial  of 
the  action.     In  Jolmson  v.  Broioning,  the  evidence  given  on 
that  occasion  by  the  defendant's  wife,  who  was  the  only  per- 
son present  at  the  time  of  the  supposed  felony,  and   who,  as 
the  report  says,  could  not  herself  be  a  witness,  was   admitted 
by  Holt,  C.  J.,  on  the  ground,  "  that  otherwise  one  that  should 
be  robbed  would  be  under  an  intolerable   mischief,    for  if  he 
prosecuted  for  such  robbery,  and  the  party  should    be  acquit- 
ted, the  prosecutor  would  be  liable  to  an  action  for  a  malicious 
prosecution,  without  the  possibility  of  making  a  good  defence, 
though  the  cause  of  prosecution  were  ever  so  pregnant."  (2) 
Imprest  ill        An  exception,  in  the  case  of  a  person  interested  in  the  costs 
wrVofccrti.  of  a  criminal  prosecution,  may  occur  on  the  trial  of  an  indict- 
orari.         mont  wliich  the  defendant  removes  by  certiorari.      In  this 
case,  the  prosecutor  is  entitled  to  costs  on  the  event  of  the  in- 
dictment being  found  in   his  favour,    but  he  is  nevertheless,  a 
competent  witness,  upon  the  special  ground  of  the  policy  and 

(2)  See   Ro^erson  v.  Whittinglon,  1  event.     But   isee    per  Tind.il,    C.  J.,  7 

Swunst.    39.     The  precise   meinin^  of  Uing.  39S,  ante,  Ch.  6. 
this  observation  seeina    not   very    clear,  (I)   Stewitrt    v.    Barnes,    1  Mood.  & 

hut  it  iippeius  to  assume  that   a    party  to  Rob.  472. 

a  suit    is    incompetent,    qua  party,  and  (2)  See  also  B.  N.  P.  14,  citing  Coh' 

without  reference   to  any  inteiest  in  tlie  v.  Car.  1746. 


Ch.  9,]        Of  Exceptions  to  the  Rule  of  Interest.  135 

intention  of  the  statute  ;  for  the  object  of  the  statute  was  to 
discourage  the  removal  of  indictments  ;  and  if  the  defendant 
could  disqualify  the  prosecutor  from  giving  evidence,  by  re- 
moving the  indictment,  such  removals  would  be  encouraged 
and  multiplied.  (3)  Upon  an  indictment  for  the  non-repair 
of  a  road,  power  was  given  to  the  court  by  the  Highway 
Acts,  (4)  to  award  costs  against  the  prosecutor,  if  the  prose- 
cution appeared  to  be  vexatious  ;  but  this  provision  does  not 
^affect  the  prosecutor's  competency  ;  (1)  the  evidence  of  the  [  *144  ] 
prosecutor  is  receivable  according  to  the  general  rule,  and,  be- 
sides, the  interest  is  uncertain,  as  the  power  of  awarding  costs 
is  in  the  discretion  of  the  Court.  (2) 

There  are  yet  some  other  classes  of  cases,  constituting  ex- 
ceptions to  the  general  rule  of  evidence,  founded  on  the  poli- 
cy of  preventing  an  abuse  of  the  rule. 

Where  a  witness  offers  to  surrender  or  release  his  interest,  Witness  of- 
and  thus  does  all  in  his  power  to  remove  the  objection  to  his  surrender, 
testimony,  but  the  other  party  refuses  to  accept  the  release,  it 
will  not  be  competent  to  such  party  to  object  to  the  witness's 
testimony,  and  his  evidence  may  be  received.  (3)  Or,  if  the 
interest  may  be  removed  by  the  release  of  one  of  the  parties 
to  the  cause,  and  such  party  offers  to  remove  it,  and  the  wit- 
ness refuses,  he  cannot  thereby  deprive  the  party  of  his  testi- 
mony. 

In  the  case  of  Anstey  v,  Doicsing,  (4)  indeed,  Lee,  C.  J.,  Legatee, 
expressed  an  opinion,  that  a  legatee  was  not  competent  to  prove 
the  due  execution  of  the  Will,  although  payment  of  the  leg- 
acy was  tendered  to  him,  which  tender  he  refused.  But  the 
ground  of  this  opinion  was,  that,  even  if  he  had  accepted  ^''^yment. 
the  legacy,  he  still  would  have  been  incompetent,  as  having 
been  interested  at  the  time  of  attestation  ; — a  point,  on  which, 
though  there  has  been  some  difference  of  opinion,  the  greatest 
authorities  are  in  support  of  the  contrary  proposition,  namely, 
that  the  payment  of  the  legacy  would  restore  the  competency 
of  the  witness.  (5) 

If  a  witness  has  acquired  an  interest  in  the  subject-matter,  interest  ac- 
for  the  mere  purpose  of  depriving  the  party  to  the  suit  of  the  ?rn'uduient- 
*benefit  of  his  testimony,  this  ought  not  to  exclude  him  from  '>'• 
giving  evidence.     It  was  ruled  by  Lord  Holt,    in  the  case    of  t    ^'^^  J 
Barlow  y.  Voivel,  (1)  that  if  a  man  be  a  witness  of  a  wager, 

(3)  R.  ■».  Muscot,  10  Mod.   19S.  proof  of  wills  i.s  particularly  considered. 

(4)  See  Stat.  13  Geo.  3,  c.  78,  3.  64.     Wyndhatii  «.  Chetvvynd,    1    Burr.   414. 

(1)  11.  «.  llammersmitli,  1  Stark.  N.  Doe  d.  llendson  v.  Keisey,  4  I5urirs 
P.  C.  357.  Kcc.    Law,    97.       It    may    be   doubted 

(2)  See  R.  v.  Cole,  1   Esp.  IfiD.  wlietlicr  llie  legatee,  though  paid,  could 

(3)  Goodtitle  r.  VVelford,  Doug.  134.  retain  the  money,  if  ihe  will  were  set 
Per  Duller,  J.,  3  T.  R.  35.  aside. 

(4)  2  Str.  1253.  (I)  Skin.  586.     See  Rescous  v.  Wil- 

(5)  ride   infra,  Varl  2,   where  the     liums,  3  Lev.  152,  and  C'owp.  736. 


136  Of  Exceptions  to  the  Rule  of  Interest.       [Ch.  9- 

Wager.(H)  aud  aflcrwards  bet  himself,  this  shall  not  be  a  reason  to  ex- 
cept against  his  being  sworn  to  prove  the  wager.  And  from 
analogy  to  this  case,  Lord  Kenyon  and  Mr.  Justice  Ashurst 
were  of  opinion  in  the  case  of  Boit  v.  Bttkcr^  (2)  (where,  on 
the  trial  of  an  action  on  a  policy  of  insurance,  the  broker  had 
been  called  as  Avitness  for  the  defendant,  but  rejected,  because 
he  had  underwritten  the  policy  after  the  defendant,)  that  even 
if  it  Avere  true  in  general,  that  one  underwriter  could  not  be 
a  witness  for  another,  yet  the  witness  ought  to  have  been  ad- 
mitted in  that  case,  as  the  defendant  had  acquired  an  interest 
in  his  testimony  before  the  witness  had  signed  the  policy. 
And  they  laid  down,  as  a  general  principle,  deducible  from  the 
case  of  Barloic  v.  Voivel,  that  where  a  person  makes  himself 
a  party  in  interest  after  a  plaintiff  or  defendant  has  an  interest 
in  his  testimony,  he  may  not  by  this  deprive  the  plaintiff  or 
defendant  of  his  testimony. 
Interest  ap-  Howevcr,  it  appears  to  be  rather  doubtful,  whether  this  pro- 
liiMseoC  position  is  not  expressed  in  too  large  and  general  terms.  The 
uciioii.  incompetency  of  a  witness,  on  account  of  interest,  must  de- 
])end  ratlier  on  the  nature  of  the  interest,  than  upon  the  time 
of  acquiring  it.  The  question  on  the  voire  dire  is,  whether 
he  is  interested  at  the  time  of  his  examination.  If  he  is  di- 
rectly interested  at  that  time,  he  is  not  a  competent  witness 
in  general  without  a  release,  and  it  seems  to  be  no  answer  to 
the  objection,  to  show  that  he  has  become  interested  only 
since  the  commencement  of  the  action,  or  since  the  time  of 
his  being  acquainted  with  the  fact  which  he  is  called  to  prove. 
Thus,  before  the  3  &  4  W.  4,  c.  42,  upon  a  trial  on  a  custom- 
ary right  of  common,  a  witness  was  incompetent,  who  admit- 
ted upon  the  voire  dire,  that  he  was  in  the  occupation  of  a 
messuage,  and  that  he  claimed  a  similar  right  of  common  as 
annexed  to  his  tenement ;  and  it  could  not  be  material,  wheth- 
[  *146  ]  er  he  had  been  in  possession  for  a  number  of  years,  *or  had 
the  tenement  only  just  before  the  trial  of  the  cause.  In  eith- 
er case,  he  appeared  to  be  equally  incompetent :  yet  in  the 
latter  it  might  be  said,  that  he  had  acquired  his  interest,  after 
the  party  had  become  interested  in  his  testimony.  The  case 
of  Barlow  v.  Vowel  must  be  considered  as  having  been  deter- 
mined on  the  ground  of  fraud  :  the  witness,  proposed  to  be 
examined,  was  the  original  witness  of  the   wager ;    it  was  a 

(2)  3  T.  R.  27. 


(a)  Tlie  confession  of  a  witness  as  to  his  incompetency  to  testify  in  a  criminal 
case,  is  not  admissible.  Commonwealth  v.  Waite,  .5  IMass.  261.  If  the  law  were 
not  so,  any  unwilling  witness  for  the  Commonwealth,  might  deprive  the  same  of  his 
testimony  by  dechiraiioiis  of  his  interest  in  the  presence  of  the  friends  of  the  defend- 
ant, who  by  testifying  to  those  declarations  might  always  prevent  his  being  sworn. 


Ch.  9.]        Of  Exceptions  to  the  Rule  of  Interest.  137 

fraud,  therefore,  to  deprive  the  party  of  the  benefit  of  his  tes- 
timony. (1)  (a) 

In  the  subsequent  case  of  Forester  y.  Pigou,  (2)  where  the  Undervvri- 
defendant,  in  an  action  on  a  pohcy  of  insurance,  called  anoth-  ,,7id!*^'"° 
er  underwriter  to  prove  the  policy  void  on  account  of  a  mis- 
representation of  the  nature  of  the  risk,  and  upon  the  voire 
dire  the  witness  stated,  "  that  he  had  paid  the  loss  to  the 
plaintiff,  upon  an  understanding  that  he  was  to  be  repaid  in 
the  event  of  this  action  failing,  and  that  he  had  since  receiv- 
ed a  letter  from  the  plaintiff,  promising  to  return  the  money 
in  that  event,"  an  objection  was  taken  to  his  competency,  on 
the  ground  of  his  being  interested  in  the  event  ;  the  point 
was  argued  on  the  other  side  upon  the  authority  of  Barlow  v. 
Voivel,  and  it  Avas  said,  the  witness  had  not  become  interest- 
ed until  after  the  commencement  of  the  action,  and  that  the 
plaintiff  ought  not  to  be  allowed  to  defeat,  by  his  own  act, 
the  interest  which  the  defendant  had  in  the  Avitness's  testi- 
mony ;  but  the  witness  was  considered  to  be  incompetent  and 
rejected  :  for  although  he  would  not  be  disqualified  by  any 
agreement  fraudulently  entered  into  between  him  and  the 
plaintiff  for  the  purpose  of  taking  olf  his  testimony,  yet  on 
the  other  hand  the  pendency  of  a  suit  could  not  prevent  third 
persons  from  transacting  business  bo7ia  fide  with  one  of  the 
parties ;  and  if  an  interest  in  the  event  of  the  suit  is  there- 
by acquired,  the  general  consequence   of  law  must  follow, 

(1)  By   Lord  Ellenborough  in  Fores-         (2)  3  Campb.  380.   1  Maule  &  Selw. 
ter  r.  Pigou,  1   Maule   &   Selvv.    9,   in     9,  S.  C. 
wiiich  this  case  was  much  cited. 


(a)  But  in  Burgess  v.  Lane,  3  Greenl.  165,  the  court  considered,  that  neither 
former  decisions  nor  the  spirit  of  the  rule  required  its  restriction  to  cases  of  fraud 
only  ; — in  all  cases,  where  tlie  parly  objeclinj^  to  the  witness,  is  himself  a  party  to 
the  agreement  by  which  his  interest  is  acquired,  or  had  any  agency  in  causing  him 
to  become  interested,  subsequently  to  iiis  knowledge  of  the  facts  which  lie  is 
brought  to  prove,  his  testimony  is  to  be  received  notwithstanding  such  interest. 

In  Jackson  v.  llumsy,  3  J.  Ca.  237,  Kent,  C.  J.  says,  that  the  interest  to  exclude 
a  witness  must  not  have  arisen  after  the  fact  to  which  he  is  Cdlled  to  testify  happen- 
ed. Ld.  Ellenborough,  however,  in  the  case  of  l*orester  v.  Figou,  cited  (infra) 
in  tile  text,  limits  the  applicability  of  this  principle  to  cases  where  the  witness  was 
originally  relied  upon,  by  both  parties,  to  testify  in  the  transaction,  and  wlien  the 
agreement  had  been  fraudulently  entered  into  between  the  witness  and  the  party 
objecting  ;  and  he  intimates  an  opinion  that  if  the  witness  was  not  relied  upon  orig- 
inally and  becomes  bona  fide  interested,  he  must  be  rejected. 

In  VVinship  v.  Bank  of  the  U.  S.  5  Pet.  o'29,  the  court  were  divided  as  to  the 
admissibility  of  a  witness  who  beconies  interested  after  he  has  vvitnessed  an  iiis>iru- 
rrient.  in  Eastman  tJ.  VVinship,  14  Pick.  44,  it  was  held,  that  such  a  witness  was 
incompetent  ;  but  if  there  is  management  on  the  part  of  tlie  party  to  deprive  his 
adversary  of  the  testifiiony  of  the  witness,  it  shall  not  dis(]ualify. 

A  creditor  shall  not  be  permitted  to  take  security  of  a  witness  ivith  a  vieio  to 
exclude  him.     10  Wend.  1«2. 

18 


138  Of  Exceptions  to  the  Rule  of  Interest.       [Ch.  9. 

that  tho  person  so  interested  cannot  be  examined  as  a  witness 
lor  that  party,  from  whose  success  he  will  necessarily  derive 
ail  advantage.  A  motion  was  alter  wards  made  for  a  new  tri- 
al on  account  of  the  rejection  of  this  witness,  as  well  as  of 
another  also,  who  was  similarly  situated  ;  and  a  new  trial  was 

[  *147  ]  *granted  for  the  purpose  of  ascertaining  more  ])articularly  the 
precise  time,  when  the  understanding  was  made  to  the  wit- 
nesses ;  but  the  Coiu't  added,  that,  if  a  ])erson,  \vho  is  nnder  no 
obligation  to  become  a  witness  for  either  of  the  parties  to  a 
suit,  choose  to  pay  his  debt  before-hand,  upon  a  condition 
that  is  to  be  determined  by  the  event  of  the  suit,  he  becomes 
as  much  interested  in  the  event,  as  if  he  were  a  party  to  a 
consolidation  rule. 

In  a  more  recent  case  in  the  Common  Pleas,  where  the 
plaintiff"  in  an  action  on  a  charter  party  had  communicated  to 
the  attesting  witness  an  interest  in  the  profits,  which  were  ex- 
pected to  arise  from  the  adventiu'e,  the  witness  who  refused 
to  release  his  interest  was  rejected,  as  incompetent  at  the  tri- 
al ;  and  the  Court  held,  that  his  evidence  was  inadmissible, 
upon  the  ground  that  he  had  derived  his  interest  immediately 
from  the  plaintiff,  who  proposed  to  call  him,  and  that  the 
plaintiff'  could  not  justly  complain  that  his  witness  Avas  dis- 
qualified, when  he  himself  was  the  cause  of  liis  disqualifica- 
tion. (1) (a) 

Wager  on  Lord  Raymond,  in  the  case  of  the  Kitig  v.  Fox,  (2)  admit- 
ted the  prosecutor  to  be  a  witness,  although  he  had  laid  a  wa- 
ger, that  he  should  convict  the  defendant :  and  the  true  rea- 
son seems  to  be,  not  because  the  witness  had  made  the  wager 
at  a  time  when  public  justice  became  interested  in  his  testi- 
mony, but  because  it  would  be  against  public  policy  to  allow 
a  witness,  by  any  such  gratuitous  act,  to  exclude  himself 
from  giving  evidence.  In  addition  to  this,  it  may  be  observ- 
ed, that  the  wager  would  now  probably  be  considered  abso- 
lutely void,  on  a  principle  of  public  policy,  as  tending  to  pro- 
duce an  improper  bias  on  the  mind  of  the  witness,  and  there- 
fore as  directly  prejudicial  to  the  administration  of  justice. 

(J)  Hovill    V.    Sleplicnson,     5    Bing.  attesting  witness,  subsequently  lo  the  e.\- 

493.      I5est,    C.    J.,    in    delivering    llie  ecuiion  of  the    insltunieiit,  becomes  in- 

judgment  of  tlie  Court,  said,  the  ca<e  of  terested  by  operation  of  law,  evidence  of 

I  orester  v.  Pigou  was  stronj^er  than  that  his    handwriting    is   admissible.      Post, 

before  the  Court.       It  was  also  held  that  Part  2. 

evidence    of  the    witness's    handwriting  (2)   1  Str.  652. 
was  admissible.     In  general,    where   an 

•;•> ■■ • 

(a)  See  9  Tick.  322.  But  in  Ten  Eyck  v.  Bill,  5  Wend.  55  ;  the  witnes.s  had 
the  promise  of  an  order  for  the  amount  in  di.«putc  ;  Held,  that  he  was  notwithstand- 
ing a  competent  witness.     See  also  Seaver  v.  Bradley,  6  Greenl.  60. 

.An  assignment  made  with  a  fraudulent  intent  to  render  the  witness  incompetent, 
shall  not  avail.     9  Wend.  394. 


conviction. 


Ch.   lO.j  Of  restoring  the  Competency,  ^<\  139 


*CHAPTER  X.  [  *148  ] 

OF  THE  MODE  OF  OBJECTING  TO  THE  COMPETENCy  OF  AN  INTER- 
ESTED WITNESS,  AND  OF  THE  MEANS  OF  RESTORING  COMPETENCY. 

It  is  proposed  to  consider,  in  the  present  chapter,  what  is 
the  regular  mode  of  objecting  to  the  competency  of  a  witness, 
on  the  ground  of  interest,  and  what  are  the  means  of  restor- 
ing his  competency. 

The  rule  formerly  was,  that  the  objection  ought  to  be  made  objection 
on  the  voire  dire,  and  that  if  made  after  the  examination  in 
chief,  it  would  not  have  the  effect  of  excluding  the  witness. 
But  the  strictness  of  the  rule  on  this  subject  has  been  relaxed, 
and  now,  if  it  be  discovered  during  any  part  of  the  witness's 
examination,  or  even  after  his  cross-examination,  that  he  is 
interested,  the  objection  may  be  taken,  and  his  evidence  will 
be  struck  out.  (1)  («)  It  has,  indeed,  been  laid  down,  that 
the  objection  may  be  taken  at  any  stage  of  the  cause  ;  (2)  but 
it  was  ruled  at  nisi  priiis,  in  a  case  before  Gibbs,  C. .!.,  where 
the  examination  of  a  witness  had  been  completed,  and  he  had 
left  the  box,  but  was  recalled  by  the  judge  for  the  purpose  of 
asking  him  a  question,  that  it  was  too  late  then  to  object  to 
his  competency.  (3)  At  oil  events,  it  is  clear  that  the  objec- 
tion should  be  made  during  the  trial,  and  that  a  new  trial  will 
not  be  granted,  on  the  ground  of  the  objection  to  the  com- 
petency of  a  witness  being  discovered  after  the  trial  was  con- 
cluded. (4)  (6) 

(1)  See  Turner  v.  Pearce,  1  T.  U.  ness's  incompetency  by  the  opening 
720.  Stone  D.  Blackburn,  1  Esp.  37.  speech  of  c.ounse!,  or  tlie  examination  in 
By  Lord  Elienborough,  2  Campb.  14.  chief  of  the   witness,  doubts  have  been 

(2)  Per  Lord  Kenyon,  1  Esp.  37.  entertained  at  nisi  prius,  whether  an  ob- 

(3)  Beechirig  r.  Gower,  Holt,  N.  P.  jection  to  tiie  coinpetency  of  a  witness 
C.  314.       And    where  a  party  has  been  can  be  postponed. 

folly  apprized  of  the  grounds  of  a  wit-         (4)  Turner  v.  Pearce,  1  T.  R.  720. 

(a)  A  party,  in  consequence  of  rather  modern  practice,  is  not  bound  to  establish 
the  interest  of  a  witness,  in  order  to  exclude  him  upon  a  preliminary  enquiry  before 
he  is  sworn  in  chief;  and  if  his  interest  appears  in  the  course  of  his  examination, 
the  objection  may  be  taken.  6  J.  R.  .538  ;  7  Wend.  180.  But  this  relaxation  of 
the  practice  lakes  along  with  it  the  right  of  the  opposite  party  whenever  the  excep- 
tion is  taken  to  remove  it  by  a  release,     id. 

The  release,  however,  should  be  executed  before  the  examination  is  completed. 
See  Doty  v.  Wilson,  14  J.  R.  378  ;  Mann  v.  Mann,  id.  1  ;  Heyl  v.  Burling,  1 
Caines  R.  14. 

(h)  The  rule  both  in  civil  and  criminal  cases,  is,  that  objections  to  the  witness 
whether  founded  on  interest  or  infamy  on  conviction  for  crime,  must  be  made  at  the 
trial,  and  when  the  witness  is  offered  to  be  sworn.  Accordingly,  it  was  held  that 
where  the  objection  was  not  thus  made,  a  new  trial  cannot  be  demanded  as  a  right. 
17  Mass.  .'jSS. 

The  rule  now  established  is,  that  if  a  witness  be  discovered  to  be  interested  dur- 
ing any  part  of  the  trial,  his  testimony  is  to  be  disregarded.  Butler  V.  Tufts,  13 
Maine,  R.  302  ;  Stout  ?>.  Wood,  1  Blackf.  R.  72.  Though  the  party  against 
whom  the  witness  is  produced  has  made  previous  attempts  to  exclude  him.  Schil- 
ling V.  M'Cann.  G  Greenl.  3G8. 


ed 


140  Of  restoring  the  Competency  [Ch.   10. 

[  *140  J  *It  seems  also,  that  when  witnesses  have  been  examined  on 
interrogatories,  which  are  afterwards  read  on  the  trial  of  a  cause, 
it  is  too  late  to  ohj(X't  to  their  coinpetency  on  the  ground  that 
thc^y  ap})car,  from  the  depositions,  to  be  interested  ;  and  that 
the  objection  ought  to  have  been  taken  at  the  time  of  exami- 
nation, or  upon  application  to  the  Court  to  suppress  the  depo- 
sitions before  their  production  at  the  trial.  (1)  (a) 

How  mis  The  party,  against  whom  a  witness  is  called,  may  examine 
him  respecting  his  interest  on  the  voire  dire,  or  may  call 
another  witness,  and  produce  other  evidence,  in  support  of  the 
objection.  If  the  fact  of  interest  is  satisfactorily  proved  by 
other  evidence,  the  witness  will  be  rejected,  though  he  may 
liave  ventured  to  deny  it  on  the  voire  dire.  (2)  (6) 

(1)  Ogle  w.  Paleski,  Holt,  N.  P.  C.  on  the  voire  dire,  and  denied  that  be 
485.  Anun.  2  Tidd's  Prac.  812,  9lh  was  interested,  could  not  be  contradict- 
edit.  ed.     See  by  Lord  HardwicUe,  in  Lord 

(2)  The   old   rule  appears   to   have     Lovat's  case,  9  St.  Tr.  647,  fo.  ed.     10 
been   that    the   statement  of  a  witness,     How.  St.  Tr.  596. 
who  had  been  examined  as  to   the  fact 

If  a  witness  on  his  cross-examination  says  that  he  is  not  interested  ;  Held,  that 
the  party  may  nevertheless  prove  his  interest  by  other  testimony.     Stoot  v.  Wood, 

1  Blackf.  R.  72.  But  proof  of  contrary  statements  goes  only  to  the  credit.  Lamb 
V.  Stewart.  2  Ohio,  230  ;   1  Blackf.  87. 

In  C'halfield  v.  Lothrop,  6  Pick.  417,  the  witness  on  voire  dire  denied  being  in- 
terested ;  and  it  afterwards  appearing  that  this  testimony  was  not  true,  the 
court  granted  a  new  trial.  But  in  a  subsequent  case,  where  the  attorney  bad  testi- 
fied for  the  plaintitl"  as  to  the  loss  of  the  note  m  (juesiion  ;  Held,  that  it  was  too 
late  to  take  exception  to  his  competency  after  he  had  testified  ;  especially  as  it  ap- 
peared that  defendant  knew  of  the  ground  of  his  exception  before  the  '.vitness  had 
testified.     8  id.  .390. 

(a)  And  in  Chancery,  where  the  nature  of  the  interest  is  such  that  it  can  be  re- 
leased, it  is  too  late  to  object  to  the  competency  of  the  witnesses  at   the  hearing. 

2  Paige's  Ch.  R.  54  ;  3  id.  546. 
{b)  In  Williams  v.  Matthews,  3  Cowen,  252,  it  was  held,  that  if  the   witness 

answer  generally  that  he  is  interested,  he  must  be  rejected,  unless  the  party  by 
further  examination  of  the  witness  shows  that  his  interest  is  not  a  legal  interest. 

The  statements  made  on  the  voire  dire  by  the  witness,  that  he  considered  him- 
self fully  inden)nified  against  his  covenants,  is  not  sufficient  to  restore  his  compe- 
tency ;  the  farthest  extent  to  which  courts  have  gone  is  this,  that  where  a  certain 
sum  of  money  can  be  so  placed  either  with  the  witness  himself  or  with  the  court 
and  its  olWcers  under  the  rule  of  the  court,  the  interest  creating  the  disability  may 
be  thus  extinguished,  so  as  to  restore  the  competency.     17  Pick.  269  ;  16  id.  264. 

A  general  release  to  a  witness  shown  to  be  interested  "  excepting  a  certain  judg- 
ment in  the  releasor's  favor"  is  sufficient  to  restore  the  competency  of  the  witness, 
unless  it  appears  that  the  judgment  referred  to  relates  to  the  matter  in  question. 
Berton,  R.  133. 

In  the  case  of  Chance  v.  Hine,  6  Conn.  29,  the  court  state  the  general  rule  of 
evidence  thus  : — When  a  witness  is  offered  in  a  cause,  and  an  objection  is  raised 
against  him,  it  is  incumbent  on  the  party  wishing  to  exclude  the  witness,  before  he 
testifies,  to  show  his  incompetency.  This  may  be  established  by  calling  witnesses 
to  show  the  fact  upon  which  the  objection  rests  ;  or,  the  witness  may  be  himself 
examined  on  the  voire  dire.  But  when  an  election  has  been  made  it  is  a  waiver 
of  every  other  mode  of  proving  the  fact  : — unless  indeed,  as  is  sometimes  practis- 
ed, the  party,  in  an  early  stage,  suggests  to  the  court,  that  the  witness  has  an  inter- 
est, which  his  testimony  will  develope,  to  render  him  incompetent  ;  in  which  he 
claims,  that  although  he  permit  him  to  be  sworn  in  chief,  he  shall  reserve  the  right 


Ch.   lO.J  of  an  interested  Witness.  141 

Where  the  interest  of  the  witness  arises  from  some  written  Examma- 

.  tiononuoirc 

instrument,  which  is  not  produced,  he  may  be  exammed  as  to  dire. 
the  contents  of  it,  on  the  voire  dire.  The  general  rule,  which 
requires  the  production  of  the  instrument  itself,  or  that  a  no- 
tice to  produce  it  shall  be  given  before  a  witness  can  be  ex- 
amined as  to  its  contents,  does  not  apply  to  such  a  case  ;  for 
the  objecting  party  may  be  ignorant  of  its  existence  before  the 
examination  of  the  witness,  and  he  cannot  be  supposed  to 
know  that  a  particular  witness  would  be  called  on  the  other 
side.  If,  however,  the  witness  himself  produces  the  instru- 
ment, it  ought,  of  course,  to  be  read  as  the  best  evidence  of 
the  witness's  situation.  (3) 

When  the  obiection  arises  from  a  witness's  answer  on  the  Objection 

.  ,.,  .,  1  1  .,.         remored  on 

voue  dire,  it  may  likewise  be  removed  on  the  vwre  aire,  wire  dire. 
Thus,  ill  an  action  brought  by  a  chartered  company,  where  a 
witness  for  the  plaintiff  admitted,  on  the  voire  dire,  that  he 
had  been  a  fr-eeman  of  the  company,  but  added,  that  he  was 
then  disfranchised,  *Lord  Kenyon  ruled,  that  it  was  not  ne-  [  *150  ] 
cessary  to  prove  the  disfranchisement  by  the  regular  entry  in 
the  company's  books,  and  that  the  witness  was  competent.(l) 
In  a  case  where  a  witness,  examined  on  a  settlement  question, 
stated  on  the  voire  dire,  that  he  occupied  a  cottage  in  the  ap- 
pellant's township,  but  that  ke  was  not  rated,  nor  did  he  pay 
any  public  rate,  the  Court  of  King's  Bench  held,  that  there 
was  no  ground  for  objecting  to  his  competency,  and  that  it 
was  iTOt  necessary  for  the  appellant,  who  called  him,  to  pro- 
-duce  the  rate  as  the  best  proof  of  his  not  being  rated.  (2)  So, 
in  an  action  by  an  administrator,  where  a  witness,  called  for 
the  plaintiff,  admitted  that  he  was  next  of  kin,  and  was  ob- 
jected to  on  this  ground,  but  answered-  on  re-examination, 
that  he  had  released  all  his  interest,  this  was  held  by  Lord 
Ellenborough  to  remove  the  objection.  (3) 

It  is  here  necessary  to  mention  two  cases  which  have   re-  Objection 
•cently  been  decided  at  nisi  prius.     In  an  action  by  a  bank-  ed 
rupt's  assignees,  where  the  bankrupt,  being  called  as  a  witness  ^^''^ 


not   rcmov- 
on  voire 


(3)  Butler  v.  Carver,  2  Stark.  N.  P.         (2)  R.  v.  Gistnirn,  15  East,  57. 
€.  434.  (3)  Ingram  v.  Dade,  Lond.  Sitt.  after 

(1)  Butcher's  Company   v.   Jones,  1     Mich.  T.  1817. 
Esp.  N.  P.  C.  162.      Botham  v.  Swing- 
ler,  Peake,  N.  P.  C.  218,  1  Esp.  164, 
S.  C. 

of  moving  the  court,  that  the  testimony  of  such  witness  be  disregarded,   and  hold- 
«n  as  though  it  had  not  been  given  in  the  case. 

When  a  party  has  proof  of  the  witness'  interest,  which,  for  tlie  moment,  he 
thinks  proper  to  suppre<!s,  he  shall  not  be  permitted  to  enquire  of  him,  under  the 
voire  dire,  and  thus  sport  with  his  conscience,  (IJulIer  d.  Butler,  3  Day,  214,) 
■with  a  view  of  contradicting  him  hy  other  evidence  ;  or,  if  he  has  made  the  en- 
*iairy  by  other  testimony,  he  is  equally  precluded  from  interrogating  the  witness 
under  the  voire  dire.  But  where  the  enquiry  of  interest  arises  at  different  times, 
■;md  on  distinct  grounds,  there  can  be  no  objection  to  the  establishment  of  it  by  dif- 
ferent mod€3  of  testimony.     5  Conn.  R,  258. 


142  Of  restoring  the  Competency  fCh.   \0- 

for  the  i)laiiiti[rs,  stated  tliat  he  had  obtained  his  certificate, 
and  released  his  surphis,  it  was  rnled  by  Best,  C.  J.,  that  the 
certificate  and  release  ought  to  be  produced,  or  their  non-pro- 
duction accounted  for.  (4)  And  in  a  suliscquent  case  at  nisi 
prius,  in  which  the  same  point  arose,  Tindal,  C.  J.,  observed, 
that  tlic  difliculty  was,  that  the  objection  did  not  arise  on  the 
voire  dire^  but  appeared  from  the  joleadings  themselves,  and 
seemed  to  think  that  it  was  necessary  to  produce  the  release, 
which  the  bankrupt  stated  he  had  given  to  his  assignees.  (5) 
But  there  appears  to  be  no  sound  distinction  between  these 
cases,  and  those  cited  to  illustrate  the  rule,  that  where  the  ob- 
jection arises  on  the  voire  dire^  it  may  be  removed  on  the 
voire  dire.  And  it  may  be  observed,  that  the  objection  can 
never  appear  from  the  pleadings  alone  without  a  question  put 

r  *151  1  **^  ^'^^  witness  himself.  This  view  of  the  subject  *appears 
to  have  been  entertained  in  a  subsequent  case,  decided  by 
Parke,  B.,  where  the  same  point  arose.  (1)  And  it  has  also 
been  ruled,  by  Park,  J.,  in  a  similar  case,  that  this  objection 
may  be  removed  on  the  voire  dire.  (2) 

Where  the  party  calling  a  witness,  who  has  been  objected 
to  on  the  voire  dire,  attempts  to  remove  the  objection  by  oth- 
er independent  proof,  and  not  by  a  further  examination  of  the 
witness  on  the  voire  dire,  he  will  be  subject  to  all  the  ordina- 
ry rules  of  evidence,  and  the  best  proof  will  be  required,  ac- 
cording to  the  nature  of  the  case.  Thus,  if  another  \vitness 
is  called  to  prove  that  the  witness,  who  has  been  objeCTcd  to 
on  the  ground  of  interest,  has  been  released,  he  cannot  be  al- 
lowed to  speak  of  the  contents  of  the  release,  but  the  release 
itself,  if  in  existence,  ought  to  be  produced.  (3) 

Release,  (a)  Whatever  interest  a  witness  may  have  had,  if  he  is  divest- 
ed of  it  by  release  or  payment,  or  by  any  other  means,  when 
he  is  ready  to  be  sworn,  there  is  no  objection  to  his  competen- 
cy, {h)  Thus  it  is  said  "to  have  been  solemnly  agreed  by 
the  Judges,  that  where  a  person  had  a  legacy  given  him  and 

(4)  Goodhay  v.  Hendry,  Mo.  &  Ma.         (2)  Carlileu,  Eady,  1  C.  &  P.  234. 
N.  P.  C.  319.  (3)  Corking  v.  Jarrard,  1  Campb.  37, 

(5)  See  Mo.  &Ma.  32l,n.  and  see  by  Lord  Kenyon,   Botham  v. 
(1)  Wandless  v.   Cawthorne,  Mo.  &     Svvingler,  1  Esp.  N.  P.  C.  164. 

Ma.  321,  n, 

(a)  A  sheriff  who  is  sued  for  the  default  of  a  deputy  may  execute  a  release  for 
the  purpose  of  making  tiie  deputy  a  witness.  Turner  v.  Austin,  16  Mass.  ISl. 
See  also  Ransom  v.  Keyes,  9  Cowen,  128.  But  see  Benjamin  v.  Smith,  12 
Wend.  404. 

(h)  Ready  to  he  sworn — A  release  executed  after  the  witness  has  deposed, 
comes  too  late.  Heyl  t'.  Barling,  1  Caines,  14.  If  during  the  examination,  his 
interest  is  discovered,  a  release  may  then  be  delivered  to  him.  7  Wend.  ISO. 
After  hearing  in  chancery  and  after  the  argument  commenced,  and  objection  being 
taken  to  a  deponent  who  had  given  his  deposition  before  an  examiner,  the  witness 
was  adinitted  to  prove  a  release.  Barrow  v.  Rhinelander,  1  J.  Ch.  R.  559.  See 
also  Doty  r.  Wilson,  14  J.  R.  378  ;  Mann  v.  I\lann,  id.  1. 


Ch.   10.]  0/  un  interested  Witiiess.  143 

viid  release  it,  he  was  a  good  witness  to  prove  the  will."(4)*(a) 

So  a  release  *from  the  drawer  of  a  bill  of  exchange  to  an  ac-  [  *152  ] 

ceptor  will  render  the  latter  a  competent  witness.  (1)  (b) 

A  general  release  of  all  actions  and  causes  of  action,  for  any  P**""^'  '^' 
matter  or  thing  which  has  happened  down  to  the  time  of  the 
release,  will  discharge  the  witness  from  all  liability  depending 
upon  the  event  of  the  existing  suit.  Such  a  release  from  a  de- 
fendant, who  had  drawn  a  bill  of  exchange,  to  the  witness, 
who  accepted  it,  was  held  to  have  this  effect  (2);  for,  as  Lord 
EUenborongh  said  in  that  case,  the  transaction  was  already 
past,  which  was  to  lay  the  foundation  of  future  liability ;  and 
if  the  drawer  should  have  a  cause  of  action  against  the  accep- 
tor, it  would  have  reference  back  to  the  acceptance,  and  would 
be  discharged  by  the  release.  A  similar  point  arose  in  the 
case  of  Cartwriglit  v.  Williams^  (3)  where  the  defendant  was 
the  acceptor,  and  the  witness  was  one  of  the  drawers,  for 
whose  accommodation  the  bill  had  been  accepted  ;  there  the 
witness  was  a  bankrupt,  and  it  was  objected  that  a  release  to 
the  assignees  was  necessary,  in  addition  to  the  general  release, 
since  the  defendant,  as  surety,  might  prove  the  debt  under  the 
commission  of  the  witness,  in  case  the  plaintiff  should  recov- 

(4)  Vin.    Ab.    tit.  Evidence,  14,  n.         (1)  Scott  v.  Lifford,  1  Campb.  249. 
53,    cited    by  Lord    Mansfield,    1  Burr.  (2)  Scott  v.  Lifford,  1   Campb.  249. 

423.     The  competency  of  the   witness         (3)  2  Starliie,  N.  P.  C.  342. 
does  not  depend  on  the  language  of  the 
statute,  ibid.  417. 

*  Lord  Chancellor  Hardwicke  established  the  will  of  Lord  Ailesbury  on  similar 
proof,  in  the  year  1748.  (See  1  Burr.  427.)  And  in  Wyndham  v-  Chelwynd,  (1 
Burr.  414,)  where  the  subscribing  witnesses  were  creditors  of  tlie  testator,  as  their 
debts  had  been  paid,  they  were  admitted  to  prove  the  will.  So  in  Doe  dem.  Hind- 
son  V.  Kersey,  (4  Burn.  Ec.  Law,  97,)  three  of  the  judges  were  of  opinion,  that  a 
subscribing  witness  was  restored  to  his  competency,  if  all  his  interest  had  been  re- 
leased or  e.\tinguished  at  the  time  of  the  examination.  Lee,  C.  J.,  in  Anstey  v. 
Dowsing,  (2  Str.  1253),  and  Lord  Camden,  C.  J.,  in  Doe  on  the  demise  of  Ilind- 
son  V.  Kersey,  were  of  opinion,  that  if  a  subscribing  witness  was  interested  at  the 
time  of  attestation,  nothing  ex  jiost  facto  could  give  etl'ect  to  his  attestation.  In 
the  former  of  these  cases,  Mr.  Justice  Dennison  difl'ered  from  Lee,  C.  J.,  on  this 
point.     (See  1  Burr.  427,  428.) 

(a)  Where  the  witness  was  interested  in  establishing  a  will,  there  being  a  legacy  to 
hiniself,  an  assignment  was  made  in  writing  of  his  interest  in  the  legacy  to  one  P. 
without  compensation  and  without  warranty,  and  it  was  held,  that  this  assignment 
was  equivalent  to  a  release  and  restored  the  competency  of  tiie  witness.  2  Hill's 
Jl.  412. 

An  heir  of  the  intestate  was  made  a  competent  witness,  by  executing  a  release 
to  the  plainliir,  the  administrator  on  the  estate,  and  by  also  receiving  from  the  lat- 
ter an  indetiinity  for  the  costs  of  the  suit.     Boynton  «.  Turner,  13  iVlass.  391. 

if  a  husband  or  wife  be  a  subscribing  witness  to  a  will,  which  gives  a  legacy  to 
the  other,  the  same  is  held  to  be  void  ;  and  the  husband  or  wife  in  such  a  case  is 
admissible  as  a  witness.     1  J.  Cas.  103  ;  2  id.  314. 

Executors  when  not  interested  are  admissible  as  witnesses  ;  not  being  strictly 
parties  of  record.     See  (i  J.  Ch.  R.   204  ;  8  Conn.  R.  418. 

(b)  In  an  action  against  the  drawer,  the  acceptor  was  admitted  to  prove  that  he 
had  funds  to  pay  the  bill  for  more  than  lliiity  days  after  it  became  payable,  and 
which  he  held  until  his  failure  ;  his  interest  being  exaclly  balanced.     3  Conn.  101. 


144 


Of  restoring  the  Competency 


[Ch.   10. 


[*U 


By  minor. 


Release  of 
bond  debt. 


Several 
contractors 


Partncr5% 


er  in  this  action;  bnt  Lord  EUcnborongh  held,  and  the  Court 
of  King's  Bench  were  afterwards  of  the  same  opinion,  that 
the  release  in  question,  comprehending  all  future  claims,  in 
consequence  of  any  cause  existing  at  the  time  of  granting  the 
release,  would  extend  to  bar  any  claim  of  the  defendant  as 
surety  on  the  bill,  this  being  an  inchoate  cause  of  action  then 
existing.  (4) 

But  in  an  action  by  an  administrator,  where  a  witness  call- 
ed for  the  plainlilf  was  entitled  to  a  distributive  share  of  the 
intestate's  estate,  it  was  held  by  the  Court  of  Exchequer,  that 
his  competency  was  not  restored  by  giving  a  release  to  the  ad- 
ministrator, of  all  causes  of  action  from  the  beginning  of  the 
]  world  to  *the  date  of  the  release,  for  it  was  said,  such  a  release 
would  not  affect  the  witness's  right  to  a  share  of  the  proceeds 
of  the  action,  in  case  the  administrator  recovered.  (1) 

In  an  action  by  a  minor  who  appears  by  his  guardian,  a  re- 
lease by  the  latter  will  not  be  sufficient,  the  guardian  not  hav- 
ing any  authority  to  release.  (2)  («)  A  release  of  a  bond  debt 
by  one  of  several  obligees  will  operate  as  a  release  by  all  ;  (3) 
and  a  release  to  one  of  several  obligors,  will  have  the  same  ef- 
fect as  to  all  the  others,  whether  the  bond  be  joint,  or  joint 
and  several.  (4) 

In  a  case  at  nisi  prius,  where  it  appeared  that  several  per- 
sons had  agreed  equally  to  bear  the  expense  of  a  joint  under- 
taking, and  an  action  was  brought  against  one  of  them,  it  was 
ruled,  that  another  of  the  contractors  was  rendered  a  comi:)e- 
tent  witness  for  the  defendant,  if  released  by  him,  though  the 
rest  did  not  join  in  the  release.  (5)  (b) 

It  seems  to  have  been  ruled  by  Lord  Tenterden,  in  an  ac- 
tion brought  against  one  of  several  persons,  who  were  partners 
in  business,  that  the  defendant  could  not,  by  means  of  a  re- 


(4)  See  also  by  Best,  C.  J.,  4  Bing. 
652,  and  see  Wilson  v.  Hirst,  4  B.  & 
Ad.  760. 

(1)  Matthews  d.  Smith,  2  Y.  &  J. 
426. 

(2)  Fraser  ».  Marsh,  2  Stark.  N.  P. 
C.  41. 


(3)  Bayley  v.  Lloyd,  7  Mod.  250. 

(4)  Co.  Lit.  232,  a.      2   Roll,   Abr. 
412  (G.)     1  Bos.  &  PuL  630. 

(5)  Duke  V.  Pownall,  Mo.  &  Ma.  N. 
P.  C.  430. 


(a)  A  guardian  ad  litem  cannot  release  a  witness  in  order  to  render  him  compe- 
tent.    4  Verm.  523. 

(6)  See  arite  \>.  107,  note  (h)  where  an  agreement  made  between  several  per- 
sons to  share  in  the  gain  or  loss  of  certain  suits,  was  held  to  exclude  them  from  tea- 
lifyiog  for  each  other,  though  released.  3  V\  hart.  R.  369.  But  see  Ransom  v. 
Keyes,  9  Covven,  128,  where  a  release  executed  to  a  witness  who  was  liable  to 
contribution,  was  held  to  render  tin?  witness  coiiipolciil. 

Where  two  are  jointly  liable  to  pay,  and  where  contribution  might  be  enforced, 
if  the  creditor  brings  his  action  against  one,  the  defendant  may  make  his  joint 
promissor  competent  to  testify  for  him  by  releasing  him  from  his  liability  to  contri- 
bution. Bdyley  v.  Osborn,  2  Wend.  527  ;  Robertson  v.  Smith,  IS  J.  R.  -159. 
See  also  6  N.  H.  R.  518. 


Cli.   10.]  of  an  interested  Witness.  145 

lease,  make  his  partner  a  competent  witness  for  Inm:  (6)  and 
in  an  earlier  case,  (7)  Lord  Alvanley  is  said  to  have  expressed 
an  opinion,  that  a  partner  of  the  defendant  could  not  be  made 
a  competent  witness  for  him  by  means  of  a  release,  on  the 
ground,  that,  if  the  defendant  died  or  became  insolvent,  the 
plaintid"  wonld  have  ariglit,  by  a  bill  in  equity,  to  compel  all 
the  partners  to  contribute.  But  in  a  late  case  in  the  Court  of 
King's  Bench,  this  doctrine  appears  to  have  been  overruled. 
It  was  there  decided,  that  in  an  action  against  two  partners, 
to  recover  the  balance  of  a  banking  account  extending  over 
several  years,  a  witness  called  for  the  *defendants,Avho  admit-  [  *154  ] 
ted  that  he  had  been  a  partner  with  the  defendants  during  a 
part  of  the  time  over  which  the  account  extended,  was  ren- 
dered competent  by  the  effect  of  general  releases  from  the  wit- 
ness to  the  defendants,  and  from  the  defendants  to  the  wit- 
ness. (1) («) 

In  the  recent  case  oi  Jones  v.  Pritchard,  (2)  it  was  held,  in.  Part-own- 
an  action  for  work  done  to  a  vessel,  brought  against  one  part-  ^"" 
owner,  that  another  part  owner  is  a  comj^etent  witness  for  the 
defendant,  after  a  release  ;  a  release  from  the  witness  was  not 
considered  necessary. 

A  residuary  legatee  is  not  rendered  a  competent  witness,  in  R«''^«ary 

(6)  Simons  v.  Smith,  Ry.  &  Mo.  N.  release,  and  was  a  necessary  and  com- 
P.  C.  29.  The  reason  for  this  decision  mon  hai)ility,  and  that,  therefore,  the 
is  not  mentioned.  rule  in  Lanipet's  case,  10  Rep.  50G,  was 

(7)  Cheyne  v.  Koops,  4  Esp.  N.   P.  satisfied. 

C.  112.  (2)  2  M.  &  Wei.  199,  see  Young  v. 

(1)   Wilson  c.  Hirst,  4  B.  &  Ad.  760.  Bairner,    1    Esp.    103  ;       Goodacre   v. 

It  was  considered   that   the    I'uture  rijjht  Breame,  Peake,  174;  Jennings  ti.  Grif- 

which    was    released,    had  a  foundation  fitfis,  R.  &  M.  42  ;    Moody    v.  King,  2 

and  original  inception  at  the  time  of  the  B.  &  C.  5.58. 

(a)  Robertson  v.  Smith,  IS  J.  R.  4.59  ;  Bayley  v.  Osborn,  2  Wend.  527. 

In  Black  v.  Marvin,  2  Penn.  138,  it  was  held,  that  the  interest  of  a  co-partner 
could  not  be  extinguished  by  a  release.     See  also  5  Yerg.  R.  3Sl. 

A  dormant  piirlner  has  an  interest  of  liability,  which  neither  he,  nor  his  partner, 
the  plaintiff,  is  competent  to  release.  1  Bail.  R.  3(j2.  The  defendnnt  and  the 
witness  were  partners,  as  carriers,  and  the  court  said,  that  the  joint  funds  would  be 
decreased  by  an  execution  against  either  ;  the  witness  had  an  inleresl  paramount 
to  the  release.  The  direct  and  certain  liability  of  the  partner  for  the  costs  of  the 
suit,  if  judgment  pass  against  the  pluititilf  was  considered  conclusive  against  his  ud- 
!iiissibilit\ . 

But  in  Anderson  v.  Brock,  3  Greenl.  249,  Weston,  J.,  says  — "  The  interest  of 
the  witnesses  tnust  be  considert.'d  as  legally  extinguished  by  the  triutual  releases,  so 
as  lo  restore  their  competency,  if  they  were  before  incocnpelent.  Jt  is  didicull  to 
conceive  any  interest  which  may   not  be  thus  released." 

In  (iibbs  1'.  Bryani,  1  Pick.  I  IS,  the  plaintiff  and  the  witness  gave  their  note 
for  money  loaned  lo  witness  and  defendant  ;  and  plaintiff  having  paid  the  money 
sued  defendant  alone  to  recover  the  money  paid  ;  aiid  the  defendant  executed  a 
release  to  the  witness  :  Held,  that  he  was  competent  to  testify  for  him.  iSee  also 
2  x\.  II.  R.    11.5;  .5  id.  199  ;  G  N.  H.  R.  518. 

In  Ward  V.  I.ee,  13  Wend.  41,  where  an  aclion  vv;is  sued  in  the  name  of  one 
of  the  partner's  allornies  U)  recover  the  costs  of  an  action  carried  on  also  in  the 
name  of  one  as  the  attorney  of  record.  Held,  that  the  co-partner  was  compeicnt 
to  testify  on  the  trial  of  the  former  action  on  releasing  to  the  plaintilV  his  interest. 

19 


146 


Of  restoring  the  Coiwpctcncy 


[Gil.   10. 


Stamp  of 
release. 


[*155 


Undertak- 
ing to  re- 
lease. 


Member  of 
corpora- 
tion, (b) 


an  action  by  an  executor  to  recover  a  debt  due  to  the  testator, 
by  releasing  all  claim  to  the  debt  in  question  ;  for  if  the  plain- 
tiff fail  in  the  suit,  although  he  would  not  be  liable  for  costs 
to  the  opposite  side,  he  must  pay  costs  to  his  own  attorney  j 
and  the  executor  would  be  entitled  to  the  allowance  of  these 
costs  out  of  the  estate,  the  action  being  brought  bona  fide ; 
thus  independently  of  the  debt  to  be  recovered,  the  residue 
would  be  diminished.  The  witness,  therefore,  has  still  an  in- 
terest to  support  the  action,  and  can  only  be  rendered  compe- 
tent by  releasing  the  residue,  or  by  a  release  of  the  costs  of  the 
action  from  the  attorney.  (3) 

Where  the  defendant  in  an  action  executed  a  release  to  a 
witness,  but  before  it  was  given  to  the  witness  it  was  handed 
to  the  ijlaiiitiiPs  counsel,  who  objected  to  the  form,  on  which, 
*it  was  altered  and  re-executed,  the  release  was  held  sufficient, 
and  that  anew  stamp  was  unnecessary.  (1)  And  in  a  late 
case,  in  which  the  defendant  in  an  action  executed  a  release 
to  one  of  the  witnesses  before  the  trial,  and  gave  it  to  his  at- 
torney, and  at  the  trial  it  appeared  that  another  witness  would 
require  to  be  released,  and  his  name  was  accordingly  inserted, 
and  the  release  re-executed  before  it  had  been  delivered  out  of 
the  attorney's  possession,  it  was  held  by  the  Court  of  Exche- 
quer, that  the  instrument  was  still  in  fiei'i  at  the  time  of  re- 
execution,  and  did  not  therefore  require  a  fresh  stamp.  (2) 

Where  the  defendant  has  sutfered  an  incompetent  witness  to 
be  examined,  on  the  undertaking  of  the  plaintiff's  attorney  to 
execute  a  release  to  him  after  the  trial,  and  the  plaintiff  has 
obtained  a  verdict,  a  new  trial  will  not  be  granted,  on  the 
ground  that  the  release  has  not  been  given,  but  the  witness 
will  have  a  remedy  on  the  undertaking.  (3)  (a) 

When  a  witness  is  objected  to  as  a  member  of  a  corporation, 
whose  interests  are  in  question,  his  competency  may  be  restor- 

(3)  Baker  v.  Tyrwliitt,  4  Campb.  27;  (1)  Alton  r.  Farren,  5  Car.  &  P.  513. 
and  see  Carter  v.  Abbot,  1  B.  &  C.  144.  (2)  Spicer  v.  Burgess,  1  C.  M.  &  R. 
Ferryman  v.  Sieggel,  8  Bing.  369,  as  to     129.     4  Tyr.  59S.     Qu.  as  to  tbe  suffi- 


its  being  necessary  for  the  bankrupt  to 
release  his  surplus  to  his  assignees,  or  to 
obtain  releases  from  his  creditors,  besides 
being  released  by  the  party  who  calls 
on  him.  In  Carter  v.  Abl)Ot  three  re- 
leases were  given.  In  Perrynian  v.  Steg- 
gel,  the  general  release  was  held  insuffi- 
cient. 


ciency  of  a  single  stamp  on  a  release  to 
two  witnesses.  See  per  Lord  Lyndhurst, 
4  Tyr  fi05. 

(3)   lieming  v.  English,  1  C.  M.  &  11, 
568.     5  Tywr,  185. 


(«)  A  party  executed  a  release  to  a  witness  in  order  to  extinguish  his  interest  in 
the  suit,  and  the  witness  at  the  same  time  executed  Hnd  delivered  his  note  to  the 
party  in  satisfaction  of  that  interest,  the  validity  of  which  was  to  depend  on  the 
event  of  the  suit  :  Held,  that  there  was  a  sufficient  delivery  of  the  release,  al- 
though it  did  not  come  into  the  possession  of  the  witness,  but  was  immediately  de- 
stroyed by  the  parly  on  the  rejection  of  the  witness.     4  Verm.  R.  523. 

{&)  A  Stockliolder  m  a  banking,  manufacturing,  or  other  corporation,  may  trans- 
fer his  interest  in  the  corporation  for  the  purpobo  of  restoring   his   competency  to 


Ch.   10.]  of  an  interested  Witness.  147 

ed  either  by  his  resignation,  (which  will  be  effectual  even  by 
parol,  provided  it  has  been  accepted,  and  another  person  elect- 
ed in  his  place,)  (4),  or  by  disfranchisement.  The  method  of 
disfranchisement  is  said  to  be  by  an  information  in  the  nature 
of  a  quo  warranto  against  the  member,  who  then  confesses  the 
information,  and  upon  that  there  is  judgment  of  disfranchise- 
ment. (5)  This  judgment  must  be  such  as  cannot  be  avoid- 
ed ;  for  if  it  appear  that  the  witness  can  avoid  the  judgment 
for  irregularity,  (as  he  may,  if  he  has  never  been  summoned, 
and  knew  nothing  of  his  disfranchisement,)  he  is  not  compe- 
tent. (6) 

It  has  been  seen  that  the  competency  of  a  witness  who  is  Ba"'- 
*the  defendant's  bail,   may  be  restored  by   applying    to  the  [  *156  ] 
Court  to  strike  out  his  name  from  the  bail  piece,  or  by  depos- 
iting a  sum  of  money  in  Court  at  the  trial  of  the  cause   as  a 
security  for  the  debt  and  costs.   (1)     So,  a  witness  called  for  Obligor  for 
a  plaintiff  who  is  liable  to  the  defendant  upon  a  bond  for  the 
costs  of  an  action,  will  be  allowed  to  deposit   the  amount  of 
the  penalty  of  the  bond  with  the  officer  of  the  Court,  and  his 
evidence  will  then  be  received.  (2)  (a)    It  has  also  iDcen  no-  J^^''^^^®  ^^' 
ticed,  that  if  a  witness  offers  to  release  or   surrender  his  in- 
terest, and  executes  a  release  accordingly,  his  competency  is 
restored,  though  the  party  refuses  to  accept  the  release. 

(4)  R.  V.  Mayor,  &c.  of  Ripon,  2  (1)  Baillie  v.  Hole,  Mo.  &  Ma.  N.  P. 
Salk.  432.  Com.  Dig.  tit.  Franchise  C.  290,  and  see  Pearcey  v.  Heming,  5 
(F.  30.)  Car.  &  P.  503. 

(5)  The  case  of  Mayor,  &c.  of  Col-  (2)  Lees  v.  Smelt,  1  M.  &  Ro.  329, 
Chester,  1  P.  Wms.  595,  n. 

(6)  Brown  u.  Corp.    of   London,    11 
Mod.  225. 

testify  for  the  corporation.  Gilbert  v.  Manchester  Iron  Man.  Co.,  11  Wend.  (527. 
And  he  is  competent  although  the  transfer  is  not  in  conformity  to  liie  bye-laws  of 
the  corporation,     id. 

A  witness  in  court  after  he  was  called  to  testify  transferred  his  stock  in  a  hank 
and  was  then  admitted  to  testify.  2  Cowen,  770  A  stockholder  who  sells  his 
stock  is  a  competent  witness  for  either  parly,  wit  hout  reference  to  the  time  or  the 
reasons  for  which  such  sale  was  made,  unless  he  has  reserved  to  himself  upon  the 
sale  a  legal  or  equitable  right  to  compel  a  re-transfer  of  the  stock,  or  some  interest 
therein,  or  is  liable  to  make  good  to  the  purchaser  any  diminution  in  value  the 
stock  may  sustain  by  a  verdict  adverse  to  the  interests  of  the  corporation.  Stall  v. 
Cattskill  Bank,  IS  Wend.  466. 

In  Cates  v.  Wacter's  heirs,  2  Hill's  R.  442,  the  witness  who  drew  the  will  in 
question  was  otFered  to  prove  its  contents,  and  the  correctness  of  the  copy  (the 
original  having  been  lost),  so  as  to  entitle  it  lo  probate;  it  was  objected  that  he  was 
incompetent  on  the  ground  of  interest,  he  being  entitled  to  a  legacy  under  the  will, 
whereupon  he  immediately  conveyed  his  interest  in  the  legacy  to  P.  in  Court, 
without  any  actual  consideralioti  and  witiiout  warranty,  for  the  purpose  of  restor- 
ing his  competency  :     Held,  that  the  assignment  was  equivalent  to  a  release. 

(a)  Kimmel  w.  Schwartz,  1  i'.reese,  218.  An  attorney  fully  indemnified  against 
his  liability  for  costs  is  a  competent  witness.  Chatl'ee  v.  Thomas,  7  Cowen,  35S  ; 
15  Pick.  46S.  And  a  witness  who  iiad  given  ;i  receipt  for  property  attached,  was 
held  to  be  restored  by  placing  in  iiis  hands  an  amount  in  ujoney  ca\wa\  to  what  he 
could  by  possibility  be  liable  on  iiis  receipt. 

A  guarantor  of  a  debt  may  be  made  comjietent  to  testify  by  a  delivery  of  the 
written  guaranty  to  the  witness.     6  Wend.  4  13. 


148  Privilege  of  Parties  to  the  Suit.  [Ch.   11. 


CHAPTER  XI. 

PRIVILEGE  OF  WITHHOLDING  EVIDENCE,    AND     INCOMPETENCY     OV 
WITNESSES  TO  GIVE   EVIDENCE  UPON  PARTICULAR  SUBJECTS. 

Ill  the  preceding  chapters,  we  have  considered  the  grounds 
of  incompetency  of  witnesses,  arising  from  want  of  under- 
standing, defect  of  rehgious  principle,  infamy  of  character,  and 
interest  in  the  event  of  the  suit.  The  objection  to  witnesses 
from  these  causes  depends  upon  one  principle,  the  want  of 
personal  credit  attaching  to  the  testimony  of  the  witnesses. 
We  proceed  now  to  treat  of  certain  other  grounds  for  the  ex- 
clusion of  evidence,  depending  on  various  principles.  These 
will  be  treated  of  in  the  following  order  : — 

1.  The  privilege  of  the  parties  to  a  suit  from  being  exam- 
ined. 

2.  The  incompetency  of  the  husband  or  wife  of  parties  to 
the  suit. 

3.  The  exclusion  of  matters  of  evidence  disclosed  in  pro- 
fessional confidence. 

[  *157  ]      *4.  The  exclusion  of  matters  of  evidence  the  disclosure  of 
which  would  be  prejudicial  to  public  interests. 

Analogous  to  these  grounds  for  the  exclusion  of  evidence 
are  various  others  established  for  the  protection  of  witnesses, 
as  upon  questions  relative  to  their  previous  life  and  character, 
or  tending  to  criminate  themselves,  or  to  subject  themselves 
to  forfeitures,  or  occasioning  a  disclosure  of  their  title  to  prop- 
erty ;  these  will  be  more  properly  considered  in  the  chapter 
which  treats  of  the  examination  of  witnesses. 


Section  1. 

Of  the  privilege  of  Parties  to  the  Suit  from  being  Examined. 

A  party  to  the  suit  is  never  compelled,  on  trials  before  a  ju- 
ry, to  give  evidence  for  the  opposite  party  against  himself. 
Inconvenience  from  the  exclusion  of  evidence  of  this  descrip- 
tion is  not  extensively  felt  in  practice  ;  as,  notwithstanding  the 
ordinary  tests  to  which  the  testimony  of  witnesses  is  subjected, 
parties  would  perhaps  rarely  venture  to  avail  themselves  of 
the  testimony  of  their  adversaries.      It  would  seem,    howev- 

I'ut  an  executor  who  is  a  party  of  record  is  not  restored  to  competency  by  an  in- 
demnity as  to  costs.  13  Picli.  368.  See  also  12  Wend.  404.  tie^i  punt,  p.  157, 
note,  as  to  restoring  competency  of  a  co-plaintiff 


Sect.   l.J  Privilege  of  Parties  to  the  Suit.  149 

er,  that  the  rule  in  question  originated  from  some  apprehen- 
sion of  the  vexation  and  inconvenience  which  might  ensue, 
if  a  person  were  bound  to  prejudice  or  accuse  himself:  nemo 
tenetur  seipsum  prodere.  It  may  be  doubted,  whether  this 
maxim  is  altogether  consistent  with  the  strict  administration 
of  impartial  severe  justice.  Thus  much  may  be  said  for  the 
rule,  that  it  shuts  out  opportunities  of  false  swearing  and  per- 
jury ;  and  in  criminal  trials,  saves  the  judges  from  the  necessi- 
ty of  questioning  prisoners  to  their  conviction, — a  practice, 
which  in  some  instances  might  be  ill  employed,  and  would 
generally  give  offence  to  public  feeling.  (1)  (a) 

*0n  a  question  of  settlement,  it  has  been  determined  in  the  K.ated  in- 
case of  the  King  v.  Woburn,  (1)  that  the  rated  inhabitants  of  r  *i^q  ] 
either  parish,  being  in  reality  parties  to  the  proceedings,  can 
not  be  compelled  to  give  evidence  against  their  own  parish. 
So,  in  an  action  of  ejectment,  on  the  several  demises  of  two 
lessors,  one  of  them  is  not  compellable  to  give  evidence  for 
the  defendant,  though  no  title  has  been  proved  under  his  de- 
mise. (2)  The  lessors  of  the  plaintiff,  said  Lord  Ellenbo- 
rough,  are  substantially  the  parties  on  the  record ;  all  are 
jointly  liable  ;  that  lessor,  upon  whose  title  the  recovery  pro- 
ceeds, is  generally  the  trustee  of  the  other  ;  and  there  are  the 
same  reasons  for  protecting  them  from  being  examined,  which 
have  produced  the  general  rule  of  law,  that  the  parties  on  the 
record  cannot  be  compelled  to  give  evidence  against  them- 
selves, and  are  not  permitted  to  swear  in  their  own  favour. 

In  the  case  of  several  plaintiffs  or  defendants,    the  privilege  Co-piaintiff 
is  personal  to  each  plaintiff  and  defendant.       Where  one   of  ag'a"inst 
several  co-plaintiffs  comes  forward  voluntarily  to  disprove  the  auoiher. 

(1)  The  practice  of  interrogating  the  is  frequently  departed  from  in  our  juris- 

prisoner  by  the  Court  was  very  common  prudence. 

in  the  early  state  trials,  and  was  not  (1)  10  East,  403.  This  case  was 
abandoned  at  the  Revolution.  It  seems  decided  before  the  statute  54  Geo.  3, 
to  have  been  required  on  the  part  of  eh.  170,  s  9.  It  does  not  appear  to  be 
magistrates,  previous  to  committing  pris-  determined,  whether,  since  that  statute, 
oners,  though  this  power  is  not  usually  parishioners  are  compellable  to  give  evi- 
exercised.  See  post.  Depositions  and  dence,  or  are  merely  rendered  compe- 
Examinations.  On  the  suliject  of  the  tent.  The  same  question  arises  upon  the 
exclusion  of  tiie  testimony  of  parties  to  various  other  statutes  making  rated  in- 
sults, see  Bentham,  Rationale  of  Judicial  habitants  competent  witnesses. 
Evidence,  book  ix.  ch.  3,  4,  5,  where  (2)  Fenn  dem.  Pewtress  v.  Granger, 
the  proceeding  is  not  before  a  jury,  the  3  Campb.  N.  P.  C.  178. 
maxim  nemo  tenetur  seipsum  prodere 

(a)  The  plaintiff  on  the  record  cannot  be  compelled  to  give  testimony.  7  Cow- 
en,  177;  5  Gill  and  J.  135. 

One  of  two  plaintiUs  in  assumpsit  suing  as  indorsees  of  a  promissory  note  after 
having  assigned  upon  the  trial  all  his  interest  and  right  therein  to  the  other,  who 
had  paid  into  Court  all  ilie  costs  of  the  suit,  wa^f  held  to  be  admissible  for  the 
plainlifl'  to  whom  ho  had  assigned.     JIart  v.  fleilner,  3  Ravvie,  407. 

The  payee  plaintilf  on  the  record,  was  held  to  be  competent  to  testify  in  action 
against  the  maker  of  the  note  :  the  action  being  sued  for  the  benefit  of  the  assignee. 
Johnsou  V.  Blackman,  1 1  Conn.  R.  342.     See  4  Watts,  I);  5  id.  80. 


150  Privilege  of  Parties  to  the  /Suit.  [Ch.  11. 

defendant's  liability  to  the  demand  made  upon  him,  it  has 
been  lield,  that,  with  the  consent  of  tlie  adverse  party,  he 
may  be  admitted,  though  at  the  same  time  he  defeats  the 
claim  of  those,  who  jointly  sue  with  him  (3) :  for,  if  the  plain- 
tiff were  to  make  a  declaration  against  his  interest  out  of 
court,  evidence  of  that  declaration  would  be  admissible  ;  and 
how  is  the  proof  less  credible,  said  C.  J.  Mansfield,  if,  with 
the  consent  of  the  defendant,  who  waives  all  objection  to  his 
testimony,  he  declares  the  same  thing  upon  oath  at  the  time 
of  trial. 

[*]59]  *SectionIL 

Incompetency  of  Husband  or  Wife  of  parties  to  the  Suit. 

a^d* w^ife  ^^  seems  to  follow,  as  a  consequence,  from  the  principle  on 

not  coinpe-  which  wituesscs  are  excluded  on  account  of  their  interest  in 
each^°oiher  ^^^  event  of  a  suit,  that  wherever  the  testimony  of  a   person 
is  inadmissible  upon  this  ground,  that  of  the  wife  or  husband 
of  such  person  should  be  rejected,  in  consequence  of  the  iden- 
tity of  interest  created  by  the  relation  of  marriage. 
In  civil  ca-      In  an  action,  brought  Iby  the  executrix  of  a  surviving  trus- 
*^*-  tee  under  a  marriage  settlement,    to  recover  back  the  value  of 

certain  goods  which  had  been  sold  by  the  defendant,  as  sher- 
iff, under  an  execution  against  the  husband  of  the  cestui  que 
trust,  the  husband  was  not  admitted  to  prove,  on  the  part  of 
the  plaintiff,  that  the  goods  had  been  conveyed  in  trust  to  the 
plaintiff  for  the  separate  use  of  his  (the  witness's)  wife  ;  for  the 
wife  was  substantially  the  plaintiff  in  the  suit.  (1)  (a)  A  hus- 
band is  incompetent  to  give  evidence  in  support  of  the  inter- 
est of  his  wife,  who  takes  a  reversion  in  fee  in  the  property 
in  dispute.  (2)  So  it  has  been  held,  that  as  the  bail  of  the 
defendant  cannot  give  evidence  in  his  favour,  the  wife  of  the 
bail  is  likewise  incompetent.  (3)  And  the  wife  of  a  bankrupt 
cannot  be  examined  to  prove  his  bankruptcy.  (4) 

(3)  Norden  and  anotlier  v.  William-  parties   to   a  suit,    are   privileged   from 

son,  1  Taunt.  378,  by  Mansfield,  C.  .T.,  giving  evidence. 

and   Chambre,  J.,  who    were   the   only  (1)  Davis  w.  Dinwoody,  4  T.  R.  678, 

judges  present.       And  see    Worrall    v.  and  see  Anslay  v.  Donney,  2  Str.  1253. 

Jones,  7  Bing.  395,  ante.      It  does  not  (2)  Hatfield  v.  Thorp,  5  B.  &  A.  91. 

appear  to  have  been  considered,  wheth-  (3)  Cornish  v.  Pugh,  8  D.  &  R.  65. 

er  persons  whose  admissions  are  evidence  (4)   Ex  parte    James,    1    P.    Wms. 

against  parlies  to  a  suit,  on  the  ground  of  611.     The  declarations  of  a  wife,  even 

their  being  the  real,  though  not  nominal,  when  living  separate  from  her  husband, 

(a)  In  Richardson  v.  Learned,  10  Pick.  261,  the  action  was  sued  by  the  trustee 
of  the  wife's  property;  and  held,  that  the  husband  was  a  competent  witness. 

In  Burrage  v.  Smith,  16  Pick.  56,  P.  T.  Vose,  who  with  his  wife  conveyed  the 
premises  with  warranty,  was  admitted  to  prove  the  ouster;  for  he  had  no  interest. 

The  husband  and  wife  conveyed.  Held,  that  the  husband  being  dead,  the  wife 
was  competent  to  repel  the  allegation  of  fraud  in  the  conveyance.     5  Watts,  442. 


Sect.  2.]        Incompetency  of  Husband  or  Wife,  (^'c.  151 


On  a  prosecution  of  several  persons  for  a  conspiracy,    Lord  t^rjmuiai 
EUenborough,  C  J.,  refused  to  admit  the  wife  of  one  of  the 
defendants  to  be  a  witness  for  the  others ;  a  joint  oflence  be- 
ing ^charged,  and  an  acquittal  of  all  the  other  defendants  be-  [  *160  ] 
ing  a  ground  of  discharge  for  the  husband.  (1) 

On  the  trial  of  an  indictment  against  two  prisoners  for  bur- 
glary, in  which  each  of  them  set  up  the  defence  of  a  distinct 
alibi,  it  was  proposed,  on  the  part  of  one  of  the  prisoners,  in 
proof  of  his  alibi,  to  call  the  wife  of  the  other  prisoner  ;  but 
her  evidence  was  rejected,  on  the  ground  of  tending  to  shew 
that  the  witness  for  the  prosecution  was  mistaken  as  to  one 
of  the  prisoners,  which  would  weaken  the  effect  of  that  wit- 
ness's testimony,  as  to  the  other  prisoner,  her  husband.  It 
was  decided,  by  a  majority  of  the  Judges,  that  the  witness  had 
been  properly  rejected.  (2)  But  this  case  must  be  understood 
as  having  been  decided  on  its  own  peculiar  circumstances, 
and  not  as  warranting  the  conclusion,  that  where  prisoners 
set  up  a  separate  and  distinct  defence,  the  wife  of  one  prisoner 
cannot  in  any  case  be  a  witness  for  another  prisoner. 

There  are  certain  excepted  cases,  in  which  the  evidence  of  Exceptions, 
husband  or  wife  is  admissible  against  the  other, — which  will 
be  presently  considered.       It  is  a  general  rule,  in  such  cases, 
that  if  the  evidence  of  husband  or  wife   is  admissible  against 
the  other,  it  is  likewise  admissible  in  the  other's  favour.  (3) 

It  has  been  deemed  expedient,  as  a  principle  of  public  pol-  Husband 
icy,  to  exclude  the  testimony  of  a  husband  or   a  wife  against  ||"t  7ompe- 
the  other.       It  has  been  resolved,  says  Lord  Coke,  (4)  *that  a  te«'  against 
wife  cannot  be   produced  against  her  husband,  as  it  might  be  r^*i°(3\  '] 
the  means  of  implacable  discord  and  dissension  between  them. 
The  risk  of  an  occasional  failure  of  justice  has  been  regarded 
as  outweighed  by  the  necessity  of  protecting  the   confidence 
of  domestic  life.     This  rule  holds  c(iually  both  in  civil  and  in 
criminal  cases. 

have  been  held  not  to  be  admissible  for  who  identified  either  of  the  prisoners, 
him  in  an  action  fornecessaiies.  Ilodg-  was  the  person  whom  the  wife  of  one 
kinson  v.  Fletcher,  4  Campb.  70.  The  of  the  prisoners  was  called  to  prove  mis- 
Court  of  Common  Pleas,  liovvever,  taken  as  to  the  identity  of  the  other  pris- 
doubted   as  to  the   admissibility   of  her  oner. 

confessions  as  to  adultery  for  him  in  an         (3)  Per    Lord   Tenterden,    in    R.    r. 

action  by  her  trustee.  Hchoiey  v.  Wood-  Sergeant,   II.  eV:  M.    354,   citing    R.    v. 

man,  1  JSing.  349.  Berry. 

(1)  R.  v.  Locker  and  others,  5  Esp.  (4)  CoI.it.  6,  and  see  per  Lord  El- 
107.  R.  V.  Frederick  and  another,  2  lenborough  in  R.  v.  I.ulle,  H  Ea>t,  202, 
Str.  1004,  S.  P.,  where  innlerin!  evi-  "  in  any  matter  aOecting  the  husband's 
dence  had  been  given  against  the  bus-  interest  or  character."  The  Law  of 
band,  and  it  wa.s  impossible  to  separate  .Scotland,  18  Howell's  St.  Tr.  580,  n. 
the  cases  of  two  joint  trespassers.  Alison's  Prac.  Cr.  L.  463,   and  that   of 

(2)  Pu;x  V.  Smith  and  another.  Moo-  America,  Kent's  Commentaries,  vol.  2, 
dy's  Cr.  Ca.  289.  It  should  be  remark-  p.  149,  do  not  allow  a  husband  or  wife 
ed,  though  it  is  not  staled  in  the  report,  to  be  vvilnesscs  for  or  against  each  other. 
the    only    witness    lor   the  prosecution, 


,152  Incompetency  of  Husband  or  Wife  [Ch.   11,. 

Civil  cases.       1,^  ^^  actioii  broiiglit  by  a  woman  as  fc77ie  sole,  the  defend- 
ant cannot  call  the    plaintiff's  husband  to   prove  her   married, 
and  thereby  to  nonsuit  her.  (1) 
Criminni  rpj^e  husbaud  and  wife  are  not,  in   general,   allowed  to  be 

iiiss.*^*^'  Avitnesses  against  each  other,  in  criminal  proceedings.  Tn  a 
prosecution  for  bigamy,  the  first  husband  cannot  be  admitted 
to  ])rove  the  former  marriage  against  the  wife.  (2)  («)  Such 
evidence  would  directly  criminate,  and  therefore  is  not  admis- 
sible. On  a  prosecution  against  a  woman  and  others  for  a 
conspiracy  in  procuring  a  marriage  between  her  and  her  hus- 
band, the  husband  is  not  allowed  to  be  a  witness  in  support  of 
the  prosecution.  (3)  It  seems  to  be  the  better  opinion,  that  a 
Avife  is  not  compellable  to  give  evidence  against  her  husbaud 
upon  a  charge  of  high  treason.  (4) 
Extent  of  j,i  cases  where  the  husband  or  wife  are  directly  interested 
r  *162  1  ^'^  ^'^^  event  of  the  proceeding,  the  principle  of  the  rule  for 
the  exclusion  of  their  testimony  is  carried  to  its  full  extent. 
Tbus,  it  has  been  held  that  a  wife  is  an  incompetent  witness 
against  her  husband,  although  the  marriage  took  place  after 
the  wife  was  served  with  the  subpoena  to  give  evidence  in  the 
suit.  (1) 
Consent  of  Whether  the  rule  of  exclusion  is  to  be  relaxed,  where  a 
husband,  husband  consents  to  his  wife  being  examined  as  a  witness 
against  him,  is  left  somewhat  in  doubt  by  the  authorities.  In. 
a  case  before  Lord  Hardwicke,  C.  J.,  he  would  not  suffer  a 
woman  to  be  a  witness,  though  her  husband  consented.  (2) 
In  the  case  of  Pedley  v.  Wellesley,  (3)  Chief  Justice  Best  ex- 

(1)  Bentley  v.  Cook,  cited  in  R.  v  this  passage,  Lord  Ellenborough,  6  M. 
Cliviger,  2  T.  R.  265,  269.  See  Col-  &  S.  194,  observes,  that  admitting  the 
vin  V.  Fraser,  2  Hagg.  Eccl.  Ca.  277,  n.  authority  of  the  passage,  it  assuinea 
Jourdaine  v.  Lefevre,  1  Esp.  66.  Dale  that  the  husband  was  nnder  the  criminal 
V.  Johnson,  Str.  568.  Per  Lord  Eldon,  charge,  that  he  was  included  in  the  si- 
15  Ves.  165.  mul  cum  aliit,.     See  the  case  of  R.  v. 

(2)  Grigg's  case.  Sir  T.  Raym.  1.  Smith  and  another,  ««fe.  That  a  mere 
Sedgwick  v.  Watkins,  1  V^es.  Jun.  49.  expectation  of  benefiting  the  husband, 
It  may,  perhaps,  be  thought  that  the  ev-  as,  by  giving  evidence  against  an  accom- 
idence  of  a  first  wife  might  not  improp-  plice,  does  not  exclude,  see  R.  v.  Rudd, 
erly  fall  williin  the  principle  of  the   ex-  Leach,  133. 

ceptions  hereafter  noticed.  (4)  Tlie  great  authority  of  Lord  Halo 

(3)  R.  V.  Sergeant  and  others,  Ry.  &  is  in  favour  of  the  wife  not  being  com- 
Mo.  352,  befori!  Lord  Tenlerden,  upon  pellable  to  give  evidence,  Hale's  P.  C. 
the  authority,  principally,  of  the  con-  301  ;  see  also  Brownl.  47.  Dictum  in 
verse  case  of  R.  v.  Locker,  5  Esp.  107,  Grigg's  case.  Sir  T.  Raym.  cited  Gilb. 
ante.  It  is  laid  down  in  Hale,  P.  C.  Ev.  19,  and  B.  N.  P.  289,  contra. 
301,  that  a  woman  is  not  bound  to  be  (1)  Pedley  v.  Wellesley,  3  Car.  &  P. 
sworn,  nor  to  give  evidence  against  an-  558. 

other  in  case  of  theft,  if  her  husband  be  (2)  Basker  u.   Sir   W.    Dixie,    Rep. 

concerned,  though  her  evidence  be  ma-  temp.  Hard.  264. 
terial  against  another,  and    not    directly  (3)   3  C.  &  P.  558. 

against    her    husband.       Ln  adverting  to 

(«)  On  the  trial  of  an  indictment  against  the  husband  and  others  for  a  conspir- 
acy in  enticing  avv'ay  from  her  parent  and  piocuriiig  the  marriage,  the  wife  was 
held  to  be  competent  to  testify.     2  Yealcs  U.  114. 


Sect.  2.]  of  the  Parly.  X53 

pressed  his  willingness  to  receive  the  evidence  of  the  defend- 
ant's wife,  if  the  defendant  had  consented,  but  the  defendant 
refused  his  consent.  Where  a  party  consents  that  his  wife 
shall  be  examined  as  a  witness  against  himself,  there  can  be 
no  violation  of  confidence,  which  is  a  principal  ground  of  the 
rule  of  exclusion,  but  the  probability,  tlrat  if  such  evidence 
were  generally  admitted,  family  dissensions  might  be  increas- 
ed, is  not  altogether  obviated  by  the  circumstance  of  consent. 

Although  the  husband  and  wife  are  not  allowed  to  be  wit-  Ex»«?nt  of 
nesses  against  each  other,  where   either  is    interested  in   the  Coi!a"erai 
event  of  a  proceeding  whether  civil  or  criminal,  it  seems  to  be  prweed- 
the  better  opinion,  that,  in  collateral  proceedings,  not  inmiedi-    "  ' 
ately  affecting  their  mutual  interests,  their  evidence  is  receiva- 
ble, notwithstanding  it  may  tend  to  criminate  each  other,  and 
notwithstanding  the  testimony  of  the  one  contradicts  that   of 
the  other,  or  subjects  the  other  to  a  legal  demand. 

Accordins,  indeed,  to  the  rule  laid  down  in  the  case  of  the  f-viHenrc 

'-^  ^  '  ,     ,  tending  \Q 

King  against  the  Inhabitants  of  Cliviger,  (4)  a  husband  or  criminate, 
wife  ought  not  to  be  permitted  to  give  any  evidence  that  may 
even  tend  to  crimi?iate  each  other.  In  that  case,  on  an  appeal 
against  an  order  of  removal  of  a  pauper  and  also  of  a  woman 
*as  his  wife,  the  respondents  having  proved  the  marriage,  the  [  *163  ] 
appellants  called  the  pauper,  for  the  purpose  of  proving  his 
former  marriage  with  another  woman,  but  he  swore  directly 
the  reverse  ;  they  then  called  the  woman  to  prove  the  alleged 
former  marriage.  The  Court  of  Quarter  sessions  rejected  the 
witness ;  and  the  Court  of  King's  Bench  determined,  that 
she  was  not  competent  to  give  such  evidence.  Both  Mr.  Jus- 
tice Ashurst  and  Mr.  Justice  Grose,  the  only  judges  present  in 
Court,  were  of  opinion,  that  a  husband  and  wife  are  not  per- 
mitted, from  a  principle  of  public  policy,  to  give  any  evidence 
that  may  even  tend  to  criminate  each  other  ;  that  the  objec- 
tion is  not  confined  merely  to  cases,  where  they  are  directly 
accused  of  a  crime  ;  but,  even  in  collateral  cases,  if  their  evi- 
dence tends  that  way,  it  shall  not  be  admitted  ;  for  although 
the  evidence  of  the  one  could  not  be  used  against  the  other  on 
a  subsequent  trial  for  the  offence,  yet  it  might  lead  to  a  crim- 
inal charge,  and  cause  the  other  to  be  apprehended. 

The  authorities  relied  upon,  in  support  of  this  decision,  are 
a  i^assage  from  Lord  Hale's  Pleas  of  the  Crown  (1)  and  the 
case  of  Broughton  v.  Harpur.  (2)  But  the  former  authority 
goes  no  farther  than  this,  that  the  wife  is  not  compellable  to 
^ive  any  evidence  charging  the  husband  with  an  offence  ;  the 
f>assage  is  '■'■  a  woman  is  not  bound  to  be  sworn,  or  to  give  evi- 
dence agaijist  another  in  case  of  theft,  &c.,  if  her  husband  be 
concerned,  though  it  be  material  against  another,  and  not  di- 

(4)  2  T.  R.  263.  (2)  2  Lord  Ruym.  752. 

(1)  2  II.  P.  C.  301. 

20 


154 


Incompetency  of  Husband  or   Wife       [Ch.   11. 


rectly  against  her  husband.  "In  the  case  of  Broughton  v. 
Harpnr,  where  the  plaintiff  made  title  to  lands  as  son  and 
heir  of  A.  B.  and  (J.  D.  his  wife,  in  right  of  C.  D.,  and  the 
defendant's  case  was,  that  A.  B.  was  married  to  a  former  wife 
then  living,  Gould  J.,  admitted  the  woman,  to  whom  A.  B. 
was  supposed  to  be  married,  to  prove  the  former  marriage  ; 
but  afterwards,  as  the  report  states,  the  same  cause  being  tried 
upon  the  same  title  between  the  same  parties,  Lord  Holt,  C. 
J.,  refused  to  admit  the  former  wife,  as  witness  to  prove  that 
fact.  The  note  of  the  case  is  very  short  ;  and  it  is  not  sta- 
ted for  what  reason  the  wife  was  considered  incompetent  on 
[  *164  ]  the  second  *trial.  The  objection  against  her  competency  on 
the  first  trial  was  on  the  ground  of  interest ;  and,  although 
at  that  time  this  cause  of  incompetency  was  not  accurately 
defined,  it  is  now  clearly  settled,  that  such  an  objection  could 
not  be  supported,  and  that  it  was  properly  overruled  on  the 
first  trial.  These  authorities,  therefore,  it  is  evident,  do  not 
support  the  case  of  the  King  v.  Inhabitants  of  Cliviger,  to 
the  extent  to  which  that  case  has  gone  ;  they  certainly  do 
not  lead  to  the  conclusion,  that  husbands  and  wives  are  not 
permitted  to  give  any  evidence,  in  collateral  cases,  that  has  a 
tendency  to  criminate  each  other. 

The  rule  laid  down  in  the  case  of  the  King  v.  Cliviger 
was  much  discussed  in  a  late  case,  the  case  of  the  King  v.  I71- 
habitants  of  All  Saints  in  Worcester  (1),  in  which  the  Court 
of  King's  Bench  was  of  opinion,  that  it  had  been  expressed 
in  terms  much  too  general  and  undefined.  Tliat  case  was  as 
follows :  On  an  appeal  against  the  removal  of  Esther  New- 
man, otherwise  Esther  Willis,  to  the  parish  of  All  Saints,  as 
to  her  maiden  settlement,  the  respondents  called  a  woman  of 
the  name  of  Ann  Willis,  for  the  purpose  of  proving  this  fact, 
namely,  that  at  a  certain  time  she  married  one  G.  Willis.  The 
appellants  objected  to  her  competency,  alleging  that  they 
were  prepared  to  prove  his  marriage  with  the  pauper  at  a  sub- 
sequent time.  The  quarter  sessions  admitted  the  evidence 
©f  the  witness,  who  proved  her  marriage  with  G.  W.  about 
fourteen  years  ago ;  and  cohabitation  between  this  witness 
and  G.  W.,  as  man  and  wife,  was  proved  by  other  evidence. 
The  respondents  then  proved,  that  the  pauper  gained  a  settle- 
ment in  her  own  right  in  the  appellant  parish,  and  that  she 
had  about  three  years  ago  married  G.  W.  ;  and  this  marriage 
Avas  proved  as  well  by  the  pauper  herself,  as  by  a  witness 
present  at  the  time  of  the  marriage.  Tlic  counsel  for  the  ap- 
pellants contended,  that  the  evidence  of  Ann  Willis  ought  to 
be  struck  out.  But. the  court  of  quarter  sessions  overruled  the 
objection,  and  stated  the  case  for  the  opinion  of  tlie  Court  of 


Tlie  one 
competent 
to  contra- 
dict the 
other  in 
collateral 
cases. 


(1)  Easter  Term,  1817,  May  4,  MS.     G  M.  i.  S.  194,  S.C. 


Sect.  2.]  Of  the  Party.  155 

King's  Bench.  In  the  course  of  the  argument,  which  took 
place  on  *sho\ving  cause  against  the  rule  for  setting  aside  the  [  *165  ] 
judgment  of  the  court  below,  the  case  of  the  King  v.  Clivi- 
ger  was  brought  into  discussion.  And  after  much  argument 
the  Court  of  King's  Bench  was  of  opinion,  in  the  first  place, 
that  the  case  cited  (admitting  it  to  its  utmost  extent)  did  not 
show  the  evidence  to  be  inadmissible  at  the  time  that  it  was 
otiered  ;  for  the  wife,  did.  not  contradict  the  husband,  as  he 
had  not  been  examined, — she  did  not  by  her  evidence  direct- 
ly criminate  him,  as  the  proceeding  related  to  other  matters, 
and  not  to  any  criminal  charge  against  him, — and  her  evi- 
dence covdd  never  be  used  against  him,  nor  be  made  the 
groundwork  of  any  future  criminal  proceeding  ;  the  evidence 
therefore,  was  unobjectionable  when  received,  and  could  not 
properly  be  expunged.  The  Court  were  further  of  opinion, 
that  the  rule,  laid  down  in  the  case  of  the  King  v.  Cliviger, 
was  too  large  and  general  ;  that  the  former  wife  would  have 
been  competent  to  prove  her  marriage,  though  the  second  mar- 
riage had  been  first  proved  by  the  respondents  ;  and  that  even  if 
the  second  marriage  had  been  proved  by  the  appellants,  still  she 
would  be  competent,  and  the  respondents  in  reply  might  have 
called  her  to  prove  the  former  marriage  ;  for  her  evidence  did 
not  directly  criminate  the  husband  and  never  could  be  used 
against  him,  nor  could  he  ever  be  aflTected  by  the  judgment  of 
the  Court  founded  upon  such  evidence. 

The  cases  of  the  King  v.  Cliviger,  and  the  Ki7ig  v.  All  Rrx  v. 
faints,  were  commented  on  very  fully  by  Lord  Tenterden  ^'^^'"'^^'^^• 
in  the  recent  case  of  Rex  v.  Bathivick.  {!)  In  this  case, 
which  arose  upon  a  parochial  settlement,  the  respondents  cal- 
led a  witness  of  the  name  of  Cook,  to  prove  that  he  was  mar- 
ried to  the  pauper  on  a  particular  day.  A  witness  named  Ma- 
ry Byrne,  was  then  called  to  prove  her  own  marriage  with 
Cook  on  a  previous  day.  Lord  Tenterden's  observations  tend 
so  much  to  the  elucidation  of  the  point  of  the  law  of  evidence 
under  consideration,  that  it  is  important  to  extract  them  at 
length  as  far  as  they  regard  the  matter  in  question. 

*"  The  question  arose  on  the  settlement  of  another  woman,  r  *166  ] 
considered  to  be  the  wife  of  Cook.  Cook  was  examined,  and 
proved  liis  marriage  with  this  woman  ;  but  he  was  not  asked, 
and  did  not  say,  that  he  had  not  been  previously  married  to 
the  witness  Mary.  The  witness,  Mary,  Avas  afterwards  called 
to  prove  her  previous  marriage  with  this  person.  In  deposing 
to  this  marriage,  she  did  not  contradict  any  tbing  that  he  had 
said.  I  notice  this  fact ;  but  we  do  not  mean  to  say,  that,  if 
she  had  been  called  to  contradict  what  he  had  sworn,  she 
would  not,  in  a  case  like  this,  have  been  a  competent  witness 

(1)  2  Barn.  &  Ad.  GS9.     Seo   also    Ilenman  v.  Dickinson,  .'j  Bing.   183, 


156  Incompetency  of  Husband  or  Wife      (Ch.   It. 

to  do  so.  It  is  not  necessary  to  decide  that  question  at  prcs- 
enit ;  but  it  may  well  be  doubted,  whether  the  competency  of 
a  witness  can  depend  upon  the  marshalling  of  the  evidence, 
or  the  particular  stage  of  the  cause  at  which  the  witness  may 
be  called.  In  the  present  case,  however,  the  witness  not  hav- 
ing been  called  to  contradict  her  husband,  and  her  testimony 
not  being  inconsistent  with  the  fact  to  which  he  had  deposed, 
her  incompetence,  if  it  can  be  established,  can  be  so  only  up- 
on the  authority  of  the  case  of  the  King  v.  The  Inhabitants 
of  Clivigcr.{\)  The  authority  of  that  case  was  much  shaken 
by  the  decision  of  the  case  of  the  King  v.  The  Inhabitants 
of  All  Saints,  Worcester,  (2)  in  which  Lord  Ellenborough 
said,  '  The  objection  rests  only  on  the  language  of  the  King 
V.  Cliviger,  that  it  may  tend  to  criminate  him  ;  for  it  has  not 
an  immediate  tendency,  inasmuch  as  what  she  stated  could 
not  be  used  in  evidence  against  him.  The  passage  from 
Lord  Hale  (P.  C.  301,)  has  been  pressed  upon  us,  where  it  is 
said  the  wife  is  not  bound  to  give  evidence  against  another, 
in  a  case  of  theft,  if  her  husband  be  concerned,  though  her 
evidence  be  material  against  another,  and  not  directly  against 
her  husband.  Admitting  the  authority  of  that  passage,  it  as- 
sumes that  the  husband  was  under  the  criminal  charge  ;  that 
he  was  included  in  the  simul  cum  aliis.  But  if  we  were  to 
determine,  without  regard  to  the  form  of  proceeding,  whether 
the  husband  was  implicated  in  it  or  not,  that  the  wife  is  an  in- 
competent witness  as  to  every  fact  which  may  possibly  have 
[  *167  ]  a  tendency  to  criminate  *her  husband,  or  which,  connected 
with  other  facts,  may  perha^^s  go  to  form  a  link  in  a  compli- 
cated chain  of  evidence  against  him,  such  a  decision,  as  I  think, 
would  go  beyond  all  bounds  ;  and  there  is  not  any  authority 
to  sustain  it ;  unless,  indeed,  what  has  been  laid  down,  as  it 
seems  to  me,  somewhat  too  largely,  in  the  King  v.  Cliviger 
may  be  supposed  to  do  so.'  The  decision  in  the  case  of  the 
King  V.  Cliviger  appears  to  have  been  founded  on  a  supposed 
legal  maxim  of  policy,  viz.  that  a  wife  cannot  be  a  witness  to 
give  testimony  in  any  degree  to  criminate  her  husband.  This 
will  undoubtedly  be  true  in  the  case  of  a  direct  charge  and 
proceeding  against  him  for  any  offence  ;  but  in  such  a  case 
she  cannot  be  a  witness  to  prove  his  innocence  of  the  charge. 
The  present  case  is  not  a  direct  charge  or  proceeding  against 
the  husband.  It  is  true,  that  if  the  testimony  given  by  both 
be  considered  as  true,  the  husband,  Cook,  has  been  guilty  of 
the  crime  of  bigamy  ;  but  nothing  that  was  said  by  the  wife 
in  this  case,  nor  any  decision  of  the  court  of  sesision,  founded 
upon  her  testimony,  can  hereafter  be  received  in  evidence  to 
support  an  indictment  against  him  for  that  crime.  This  is  al- 
together res  inter  alios  acta  ;  neither  the  husband  nor  the  wife 

(1)  2  T.  R.  263.  (2)  6  M.  &  S.  194. 


Sect.  2.j  Of  the  Party.  157 

has  any  interest  in  the  decision  of  the  question,  and  the  inter- 
est of  the  parish  of  Pancras  required  that  the  illegahty  of  the 
second  marriage  should  be  established,  if  it  was  in  fact  ille- 
gal." {a) 

A  wife  may  be  a  witness,  in  an  action  between  third  persons  ^^'cTihird 
not  immediately  affecting  the  interest  of  the  husband,  though  persons, 
her  evidence  may  possibly  expose  him  to  a  legal  demand  :  as, 
in  an  action  between  third  persons  for  goods  sold  and  deliver- 
ed, to  prove  that  the  goods  had  been  sold  not  on  the  credit  of 
the  defendant,  but  on  her  husband's  credit.  (1)  (6)  This  ev- 
idence, it  may  be  said,  was  in  some  measure  against  the  hus- 
band, though  he  was  not  a  party  in  the  suit.  On  the  other 
hand,  it  is  to  be  observed,  that  a  person  is  compellable  to  give 
evidence  though  it  subject  himself  to  a  legal  demand,  and 
that  to  reject  her  evidence  in  such  a  case  would  be  a  hard- 
ship on  the  defendant,  who  may  have  no  other  means  of  de- 
fending himself  %gainst  an  unjust  demand  :  and  though,  ui>  [  *168  ] 
on  her  testimony  the  defendant  might  have  a  verdict,  and  an 
action  might  afterwards  in  consequence  be  brought  against 
the  husband,  she  would  not  then  be  admitted  as  a  witness, 
nor  could  her  evidence  in  the  first  suit  be  produced  against 
him. 

It  would  seem,  indeed,  that  the  principle  of  the  rule  was 
not  infringed  upon  by  requiring  a  wife,  when  called  as  a  wit- 
ness in  a  suit,  in  the  event  of  which  her  husband  is  not  inter- 
ested, to  answer  all  questions  which  might  be  demanded  of 
her  husband ;  but  that  some  violation  was  done  to  the  prin- 
■ciple  of  the  rule  of  exclusion,  when  the  wife  is  compelled 
to  prove  facts  upon  which  the  husband  might  have    declined 

(I)  Williams  v.  Johnson,  by  King,  C.  J.,  1  Str.  204.     Bull.  N.  P.  287.  S.  C. 

(a)  In  Redman  v.  The  State,  1  Blackf.  430,  which  was  a  prosecution  for  know- 
ingly receiving  etolen  goods;  the  wife  of  another  who  stood  charged  with  stealing 
tthe  same  goods,  was  held  competent  to  testify  in  favor  of  the  prosecution. 

In  an  action  between  two  towns  regardir>g  the  settlement  of  the  wife,  she  was 
admitted  to  testify  in  reference  to  the  marriage.     Raynham  v.  Canton,  3  Pick.  293. 

(&)  The  wife  is  admissible  where  the  liability  of  the  husband  is  contingent,  and 
■not  necessarily  established  by  the  trial.  Fitch  v.  Hill,  11  Mass.  286;  Williams  v. 
Johnson,  2  Str.  504. 

In  Jackson  r.  Heath,  Bail.  R.  355,  which  was  against  the  defendant  as  maker  of 
a  promissory  note,  the  plaintiff  who  claimed  the  note  offered  the  wife  of  a  legatee 
to  whom  the  payee  of  the  note  in  question  had  by  his  will  bequeathed  all  his  notes, 
&c.;  and  Held,  that  she  was  competent,  to  prov€  that  plaintiff's  possession  of  the 
•note  was  bona  fide,  and  that  he  was  entitled  to  sue  for  them.  The  court  say:  — 
Her  husband  "was  not  a  party  to  this  suit,  and  if  he  had  any  interest,  it  was  to  de- 
feat the  plaintiff's  claim.  He  was  certainly  a  competent  witness  to  testify  against 
his  interest,  and  his  wife  must  be  equally  so,  unless  he  himself  interposed  an  objec- 
tion." 

In  an  action  brought  by  the  plaintiff  to  recover  of  the  executor  certain  property 
.of  the  testator  which  the  former  claimed  by  a  parol  gift  from  the  latter.  Held,  that 
if  he  widow  was  competent  to  testify  in  regard  to  the  gift  ;— to  establish  the  gift.  2 
Bail.  R.  57J.     Sec  3  Binn.  3(iC. 


158 


Incompetency  of  Husband  or   Wife       [Cii.   1 1 . 


Conver- 
saiions  be- 
tween hus- 
band and 
wife,  how 
(ar  privi- 
leged. 


Non-access, 

[  *169  ] 


Exceptions. 


giving  evidence,  in  consequence  of  their  tendency  to  criminate 
himself.  It  is  to  be  observed,  however,  that  the  privilege 
given  to  the  husband  in  such  a  case,  is  partly,  though  not  en- 
tirely, on  the  ground,  that  what  he  says  woidd  be  admissible 
evidence  against  himself,  whereas  the  evidence  of  his  wife 
could  not  be  used  against  him. 

With  respect  to  the  evidence  of  conversations  between  hus- 
band and  wife,  it  has  been  decided,  that  where  a  man  or  wife 
are  divorced  by  act  of  parliament,  a  wife  is  not  competent  to 
prove  a  contract  made  by  her  husband  jircvious  to  the  divorce, 
on  the  ground  that  the  confidence  between  man  and  wife 
should  be  kept  forever  inviolable.  (1)  There  have  been  con- 
trary decisions  at  nisiprius  as  to  the  point,  whether  the  wid- 
ow of  a  deceased  person  is  a  competent  witness  for  a  defend- 
ant, to  prove  an  admission  by  her  husband  in  an  action 
brought  by  her  husband's  executors.  (2) 

*It  is  settled,  that  a  wife  is  incompetent,  as  well  after  as 
before  the  death  of  her  husband,  to  prove  the  fact  of  non-ac- 
cess, that  is  to  say,  of  the  absence  of  the  fact  or  the  opportu- 
nity of  sexual  intercourse  with  her  husband,  in  whatever  form 
the  legal  proceeding  may  be,  and  whoever  may  be  parties  to 
it.  This  rule  is  established,  independently  of  any  possible 
motives  of  interest  in  the  particular  case,  upon  principles  of 
public  policy.  (1) 

There  are  several  exceptions  to  the  general  rule  upon  this 
subject,  where,  from  the  nature  of  the  inquiry,  the  informa- 
tion to  be  expected  is  peculiarly  within  the  knowledge  of  the 
husband    or    wife,     and    where   to    exclude    such    evidence 


(1)  IMonroe  v.  Twisleton,  by  Lord 
Alvanley,  PeaUe's  Add.  Ca.  219,  and 
per  Lord  Ellenborougli  in  Aveson  v. 
Lord  Kinnaird,  6  East,  192.  In  Sclio- 
ley  V.  Goodman,  1  B.  349.  The  Court 
of  Coinmon  Pleas  appear  to  have  doubt- 
ed, whether  the  declarations  of  a  wife, 
having  a  separate  maintenance,  were  ad- 
missible to  show  that  she  was  living  in 
adultery;  see  IJodgkiuson  v.  Fletciier, 
ante,  4  Cainpb.  70. 

(2)  Li  Docker  v.  Ilasler,  Pv.y.  &  I\Io. 
198,  by  Best,  C.  J.,  the  evidence  was 
rejected;  and  sec  per  Lord  Ellenborougli 
in  the  course  of  the  argument  in  Aveson 
V-  Lord  Kinnaird,  (i  East,  192.  \n  Bev- 
eridge  v.  iMinter,  1  C.  &  P.  364,  by 
Lord  Teiiterden,  C.  .T.,  tlie  evidence  was 
received.  A  distinction  may,  perhaps, 
be  drawn  between  cases,  where  the  wife 
is  called  to  prove  a  conversation  to 
which  herself  and  her  husband  were  the 
only  parties,  and  other  cases  in  which 
her  evidence  might  be  material  against 
her  husband's  executors.  See  also  Hum- 
phreys  V.    Boyle,    2   M.    &.    1\L    140, 


where  a  wife's  declarations  during  cov- 
erture, were  received  in  a  suit  brought 
by  her  administratrix  against  the  hus- 
band. 

(1)  R.  V.  Rooke,  1  Wils.  340.  R. 
V.  Kea,  11  East,  132.  R.  v.  Luffe,  8 
East,  203.  In  Goodright  v.  Moss,  Cow- 
per,  590,  Lord  Mansfield  says,  that  it  is 
a  rule  founded  in  decency,  n)orality,  and 
policy,  that  husband  and  wife  shall  not 
be  allowed  to  say,  after  marriage,  that 
they  have  had  no  conne.\ion,  and  there- 
fore, that  the  offspring  is  spurious,  more 
especially  the  mother,  who  is  the  offend- 
ing party.  The  incompetency  of  mar- 
ried people  to  prove  non-access,  has  oc- 
casionally been  rested  on  the  grounds  of 
necessity  or  of  interest,  which  grounds, 
however,  will  not  support  all  the  author- 
ities. The  wife  seems  to  be  competent 
to  prove  access,  where  no  question  ol 
interest  is  involved;  and  it  would  seem, 
that  in  such  a  case,  her  statements  as  to 
non-access  might  be  used  to  contradict 
her.  See  Peadrell  v.  Pendrell,  Str.  925, 
B.  N.  P,  287. 


Sect.  2.] 


of  the  Parly, 


159 


would  occasion  insecurity  to  that  relation  of  society,  which 
it  is  the  object  of  the  rule  to  protect.  It  has  been  before  ob- 
served, that  the  authorities  for  admitting  the  wife's  evidence, 
in  such  excepted  cases,  in  favour  of  her  husband,  are  equally 
authorities  for  receiving  it,  where  it  operates  against  him.  (2) 

A  wife  is  a  competent  witness  against  her  husband  on  any 
charge  which  affects  her  liberty  or  person,  (as,  a  forcible  mar- 
riage,) although  she  has  voluntarily  cohabited  with  him.  (3) 
A  *wife  may  be  a  witness  on  the  prosecution  of  her  husband 
for  a  rape  committed  on  her  person.  (1)  On  an  indictment 
against  a  man  for  beating  his  wife.  Lord  Raymond  suffered 
her  to  give  evidence.  (2) 

On  the  trial  of  an  indictment  against  a  man  for  shooting 
at  his  wife,  the  evidence  of  the  wife  was  ruled  to  be  admis- 
sible against  the  husband;  but  Holroyd,  J.,  thought  that  the 
wife  could  only  be  permitted  to  prove  such  facts  as  could  not 
be  proved  by  any  other  witness.  (3) 

A  wife  is  permitted  to  exhibit  articles  of  the  peace  against 
her  husband :  (4)  and  the  Court  will  not  receive  affidavits 
on  the  part  of  the  defendant,  to  contradict  the  truth  of  the  ar- 
ticles exhibited  against  him,  and  prevent  his  giving  surety.  (5) 


Forcil)le 
Slarriag^r-. 
(See  Note 
ante,  page 
161.) 
Rape. 

[  *i70  J 

Assault. 


Malicious 
shooting. 


Articles  of 
peace. 


(2)  Per  Lord  Tenterden,  C.  J.,  in  R. 
V.  Sergeant,  Ry.  &  Mo.  354,  by  Gibbs, 
C.  J.,  in  R.  V.  Perry,  cited  ib. 

(3)  Per  Hulloclv,  B.,  Wakefield's 
case,  2  Russ,  606.  Swenden's  case,  4 
Howell's  St.  Tr.  575.  R.  v.  Perry, 
1794.  Hawk.  P.  C.  b.  l,ch.  4l,s.  13. 
The  wife  was  there  called  for  her  hus- 
band; see  this  case  mentioned  by  Lord 
Tenterden,  C.  J.,  in  R.  v.  Sergeant,  Ry. 
&  Wo.  354.  Fulwood's  case,  1  Hale, 
P.  C.  302-  1  Com.  444.  The  author- 
ities are  somewhat  contradictory  as  to 
the  competency  of  the  wife  after  a  vol- 
untary cohabitation.  Hawkins  says, 
that  it  was  ruled  in  R.  v.  Perry,  that  the 
wife  was  a  competent  witness  for  or 
against  her  husband  on  a  trial  of  au  in- 
dictment for  a  forcible  tiiarriage,  al- 
though she  had  cohabited  with  him  from 
the  day  of  the  marriage;  and  in  R.  v. 
Wakefield  and  others,  Lancaster  Spr. 
Ass.  1827,  cited  2  Russell  on  Crimes, 
706,  for  a  conspiracy,  in  unlawfully  tak- 
ing Ellen  Turner,  and  procuring  her  to 
be  married,  Hullock,  B.,  received  the 
evidence  of  the  wife,  as  being  admissi- 
ble on  the  ground  of  necessity,  even  sup- 
posing tliat  the  iuarri;ige  was  valid,  and 
also  on  the  ground  that  the  defendant 
could  not  take  advantage  of  his  own 
wrong.  There  was  a  second  count 
charging  force,  which  was  not  supported 
by  the  evidence;  Hullock,  H.,  observed, 
that  he  had  seen  a  report  of  11.  v.  Perry, 
from  which   it   appeared,  that  tlic  wife 


was  held  to  be  a  competent  witness, 
though  no  force  was  used  in  the  abduc- 
tion. As  to  the  effect  of  force  in  such 
cases,  see  further,  1  Comm.  444.  1 
Hale,  P.  C.  302.  4  Mod.  3.  Str.  633. 
Cro.  Car.  488.  Ventr.  243.  2  Hawk. 
0.  46. 

(1)  Lord  Audley's  case,  1  St.  Tr. 
393.  3  Howell's  St.  Tr.  413.  Hutton, 
116.  1  Hale,  P.  C.  301.  Hawk.  b. 
2,  c.  46,  s.  77.  Proliyn,  J.,  in  Rep. 
temp.  Hard.  S3,  B  N.  P.  2S7.  1  Bl. 
Comm.  443.  See  Grigg's  case,  Sir  T. 
Rayui.  1  Gilb.  Ev.  120.  2  Kel.  403. 
Ca.  temp.  Hard.  S3. 

(2)  Ayre's  case,  1  Str.  633.  Lady 
Lawley's  case,  B.  N.  P.  287.  Jagger's 
case,  1  East,  P.  C.  454.  The  exception 
extends  to  dying  declarations,  Wood- 
cock's case,  2  Leach,  Cr.  C.  563. 
John's  case,  1  East,  P.  C.  357. 

(3)  Whitehouse's  case,  by  Garrow, 
B.  and  Holroyd,  J.,  2  Russell  on  Crimes, 
606.  Mr.  J.  Holroyd  cited  the  case  of 
Jagger,  1  East,  P.  (J.  454,  where  a  wife 
was  allowed  to  prove  the  fact  of  a  pois- 
oned cake  having  been  given  her  by  her 
liusband.  See  J{.  v.  Ferrers,  1  Buri-. 
635.  R.  V.  iMe.id,  1  Burr.  542.  R.  r. 
Bowes,  J  T.  R.  698. 

(4)  Bull.  N.  P.  287. 

(5)  Lord  Vane's  case,  2  Str.  1202, 
more  fully  stated  from  Mr.  Ford's  MS. 
in  13  East,  171,  ii.  («.);  U.  o.  Uoherty, 
ib.  S.  P. 


IGO  Incompetency  of  Husband  or  Wife         [Ch.   11. 

So,  an  aflidavit  of  a  married  woman  has  been  admitted  to  be 
[  *171  ]  read,  on  *an  application  to  the  Court  of  King's  Bench  for  an 
information  against  her  husband,  for  an  attempt  to  take  her 
away  by  force  after  articles  of  separation  :  (1)  and  it  would  be 
strange,  says  Mr.  Justice  liuller,  to  })crmit  her  to  be  a  witness 
to  ground  a  prosecution,  and  not  afterwards  to  be  a  witness  at 
the  trial.  (2)  [a) 
Secret  Upou  an  appeal  against  an  order  of  bastardy  in  the  case  of 

"^'*'  ^  '  a  married  woman,  Lord  Hardwicke  and  the  other  judges  held, 
that  she  was  a  competent  witness  to  prove  her  criminal  con- 
nection with  the  defendant,  though  her  husband  was  interest- 
ed both  in  the  question  and  the  event  of  the  appeal  ;  because 
such  a  fact,  so  secret  in  its  nature,  can  scarce  ever  be  proved 
by  other  evidence.  (3)  And,  by  a  parity  of  reason,  said  Lord 
Ellenborough,  in  the  case  of  the  King  v.  Luffe^  (4)  it  should 
seem,  if  she  be  admitted  as  a  witness  of  necessity,  to  speak  to 
the  fact  of  the  adulterous'  intercourse,  it  might  also,  perhaps, 
be  competent  for  her  to  prove,  that  the  adulterer  alone  had 
that  sort  of  intercourse  with  her,  by  which  a  child  might  be 
produced  within  the  limits  of  time  which  nature  allows  for  par- 
turition. But  this  is  only  from  the  necessity  of  the  thing.  {^){c) 

(1)  Lady  Lawlcy's  case,  Bttll.  N,  P,  maFtciaus  prosecution,  the  evidence  of  a 
287.     Mary  Mead's  case,  1  Burr.  543.  wife  given  on  the  trial  of  the  indictment 

(2)  Bull.  N.  P.  287.  In  the  case  of  has  been  received  from  necessity;  that 
Annesley  ».  Lord  AngTesea,  17  Howell,  of  ber  husband,  though  he  was  the  de- 
1276,  the  Court  were  of  opinion,  that  a  fendant,  being  received  on  the  same 
wife  might  give  evidence  as  to  her  hus-  ground.  Johnson  v.  Browning,  B.  N. 
band's  credibility  upon  oath.  See  13  P.  15.  In  the  Court  of  Justiciary  in 
Howell's  St.  T.  581,  as  to  the  words  or  Scotland,  a  wife  was  admitted  as  a  wil- 
nclions  of  a  wife  being  evidence  against  ness  for  her  husband  on  a  trial  for  mur- 
her  husband  under  the  circumstances  of  der,  to  prove  that  at  the  time  of  the  blow 
SirT.  Fenwick's  case.  given,  the  deceased   was    in    the    act  of 

(3)  R.  V.  Reading,  Rep.  temp.  Hard,  adultery  with  her. 

82.  See  Cope  v.  Cope,  M.  &  R.  276.  (6)  la  Cope  w.  Cope,  M.  &  R.  276, 
R.  r.  Bedell.  Andr.  8.  Gilb.  Ev.  189.  Mr.  J.  Alderson  directed  the  jury,  that  if 
R.  v>.  Luffe,  8  East,  203,  Infra,  chap-  they  were  not  satisfied  that  the  husband 
ter  on  Presumptions.  In  R.  «.  Read-  did  not  avail  himself  of  the  opportunity 
ing,  it  was  considered  that  the  wife  of  intercourse,  the  presumption  of  legiti- 
could  not  establish  the  whole  case,  but  macy  was  not  to  be  rebutted,  by  its  be- 
that  additional  evidence  must  be  produc-  ing  shown  that  other  men  had  also  sex- 
ed  of  the  absence  of  the  husband.  ual  intercourse  with  the  woman.      Vide 

(4)  8  East,  203,     In  an  action  on  a  infra.  Presumptive  Evidence. 

(«)  In  Soule's  case,  5  Greenl.  R.  407,  where  the  prosecution  was  for  an  assault 
und  battery  :     Held,  that  the  wife  was  competent  to  testify  for  the  government. 

It  is  common  learning,  that  a  wife  may  exhibit  articles  of  the  peace  against  her 
husband  on  oath  and  obtain  security  for  his  keeping  the  peace.  She  may  also  be 
admitted  to  prove  the  fact  of  the  violence  committed  by  the  husband,     id. 

ih)  In  a  prosecution  against  the  husband  for  the  murder  of  liis  wife,  the  deposi- 
tion of  the  latter  taken  in  writing  was  admitted.  Addis.  R.  381.  The  President 
of  the  court  observed  "  I  have  been  generally  oppressed  with  an  opinion,  that  in 
cases  of  secret  personal  injury,  a  wife  may,  on  her  own  testimony,  obtain  protec- 
tion against  her  husband,  and  be  a  witness,  to  procure  his  punishment. 

(c)  In  a  libel  for  a  divorce,  the  confession  of  cither  party,  unsupported  by  other 
evidence,  is  not  sulficienl  to  ground  a  divorce  upon.  2  Mass.  154;  5  N.  H.  IDS. 
And  in  libels  for  divorce  a  vinculo  for  adultery,  the  court  will  not  receive  the  tun- 


Sect.  2.j  o/  if^^  Parly.  161 

*The  rule  in  (luestiou  has  no  application  to  cases  where  the  Declara. 
%viie,  wlio  IS  not  produced  as  a  witness,  has  acted  tor  the  hus-  letters. 
band  in  his  business  and  by  his  authority  and  consent,  and  [  *172  ] 
where,  by  adopting  her  acts,  he  is  bound  by  any  admission  or 
acknowledgment  made  by  her  respecting  that  business.  Ca- 
ses of  thi.s  description  belong  to  the  doctrine  of  admissions.  (1) 
To  the  same  doctrine  also  belong  the  various  cases  in  which 
it  has  been  determined,  that  the  letters  or  declarations  of  a 
wife  are  not  admissible  either  for  or  against  her  husband,  even 
where  her  acts  are  the  cause  of  the  suit,  or  when  she  is  liv- 
ing sejxirately  from  him,  or  when  the  husband  is  suing 
iw  her  right  as  executrix.  (2)  The  distinctions  as  to  the 
cases  in  which  the  letters  or  declarations  of  a  wife  are  prop- 
erly to  be  considered  in  the  nature  of  facts  not  depending  on 
her  credit,  Will  be  more  properly  considered  in  the  chapter 
treating  of  hearsay  evidence.  The  evidence  of  a  husband "s 
demeanor,  upon  hearing  statements  made  by  his  wife,  and 
which  are  proved  by  a  tliird  person,  also  belongs  to  the  same 
branch  of  evidence,  (3)  (a) 

With  respect  to  the  question,  who  is  to  be  considered  a  wife  wife  of 
so  as  to  be  rendered  an  incompetent  Avitness  by  the  rule  under  ^^"^'^ ' 
consideration,  it  is  settled,  that  upon  an  indictment  for  bigamy 
after  the  proof  of  the  first  marriage,  the  woman  subsequently 
married  is  a  com|>etent  witness  agi\inst  the  prisoner,  although 
the  legality  of  the  first  marriage  cannot  be  said  to  be  determin- 
ed *before  the  prisoner's  conviction.  (1)  On.  an  appeal  against  [  *173  ] 

(1)  Emerson  ».  Bfonden,  1  Esp.  142.  more  u.  (Greenback,  Willes,  577.  Al- 
1  t!U.  527.  B.N.  P.  287.  Anderson  tan  i'  I5iichell,  6  T.  R  680.  Barron 
V.  Saunderson.  1  Holt,  N.  P.  C.  5.')!.  v.  Grillard,  3  V.  &  B.  I(J5.  Baker  o. 
White   V    Cayler,  6  T.  R    176.       Clif-  Morle,  B.  N.  P.  28. 

Jbrd  r.  Burton,  1  Bing  199.  Gregory  (3)  Where  a  wife  detailed  1o  a  sur- 
15.  Parker,  1  Campb  394.  Palethorp  «.  geon,  in  the  presence  of  her  husband, 
rurnish,  2  Esp  511,  n.  15  Ves.  159.  the  circumstances  under  wiiich  her  hus- 
IlnlJ  V.  Hall,  2  Sir.  1094,  apparently  band  had  inurdered  her  child,  the  evi- 
overruled.  Gary  r.  Adkins,  4  Cainpb  dence  was  rejected  by  (jarrow,  B  ,  in  a 
'.'■■i.  Where  a  wife's  declaration  as  to  case  tried  upon  the  ^Midland  <;ircuit.  But 
»«oney  of  which  she  had  ihe  exclusive  such  a  case  obviously  was  not  ail'ecied 
custody  was  received  See  Aveson  v.  by  ihe  principle  of  e.^clusion  discu.ssed  ia 
Eoid  Kinnaird,  6  East,  188  Hum-  the  present  ciiapter;  the  effect  of  ihe  ev- 
phreys  o  Boyle,  I  M  &  Rob.  140,  as  idence  depended  on  the  fact  of  the  bus- 
to  declarations  of  wife  concerning  a  debt  band's  demeanor,  upon  hearinif  such  a 
du«  to  her  dum  sola.  statement  by  whotnsoever  made. 

(2)  Uunn  ,-.  White,  7  T.  R.  112.  (1)  1  Hale  P.  C.  393.  B.  N.  P.  287. 
Kelley  c  Sniall,  2  Esp.  716.  Hodgkin-  1  East,  P.  C.  439,  and  see  Standen  ». 
son  p.  tletclior,   4  Campb.  70.     VVins-  Standen,  Peako,  33. 

fession  of  the  party,  whether  of  record  or  otherwise,  unaccompanied  by  other  cor- 
roborating circumstances,  us  conclusive  evidence  of  the  facts  in  the  libel,  3  (Jreenl. 
\l.  398. 

(«)  Where  husband  and  wife  were  indicted  jointly  and  tried  jointly  for  receiving 
Stolen  goods,  the  court  admitted  the  declarations  of  the  wife  ;  that  evidence  bein;; 
necessary  to  prove  the  guilt  of  the  wife.  Upon  a  motion  for  a  new  trial,  the  court 
said  : — "  The  jury  must  be  presumed  to  have  understood  that  tlicy  were  not  to  let 
it  operate  against  the  husband ;"  and  a  uew  trial  was  refused  for  tiiat  cause.  5 
rick.  429. 

21 


162  Incompetency  of  Husband  or  Wife,  ^'c.      [Ch.   11 

the  removal  of  a  woman,  as  the  widow  of  A.  B.  deceased, 
prima  facie  evidence  of  the  marriage  having  been  produced 
on  the  part  of  the  respondents,  the  Court  of  King's  Bench  de- 
termined, that  the  woman  was  a  competent  witness,  on  the 
part  of  the  appellants,  to  disprove  the  marriage.  (2)  Where 
a  witness,  produced  by  the  defendant,  had  lived  with  the 
plaintilf  as  lier  husband  during  the  time  of  the  transactions,  to 
which  he  was  called  to  speak,  but  had  ceased  to  live  with  her, 
when  her  former  husband,  who  had  been  absent  from  Eng- 
land upwards  of  thirty  years  and  was  supposed  to  be  dead,  re- 
turned to  England,  it  was  held  that  there  was  no  objection  to 
her  evidence.  (3) 

Though  a  person  has  always  held  out  a  woman  to  the 
world  as  his  wife,  it  has  been  decided,  that  she  is  not  there- 
fore incompetent  to  give  evidence  in  any  legal  proceeding,  in 
the  event  of  which  that  person  is  interested.  (4) 


Section  III. 

THE   EXCLUSION  OF    MATTERS    DISCLOSED  IN  PROFESSIONAL      CON- 
FIDENCE. 

General  Communications  made  on  the  faith  of  that  professional  con- 

''"'*^-  fidence  which  a  client  reposes  in  his  counsel,    attorney,  or  so- 

[  *174  ]  licitor,  *are  not  allowed  to  be  revealed  in  a  court  of  justice  to 
Principle,  the  prejudice  of  the  client.  The  expediency  of  this  rule  must 
depend,  not  on  the  impropriety  of  violating  the  confidence  re- 
posed, but  on  a  consideration  that  the  collateral  inconvenience 
which  would  ensue,  if  no  such  confidence  were  reposed,  would 
preponderate  over  the  direct  mischief  produced  by  the  chance 
of  misdccision  or  failure  of  justice  resulting  from  the  want  of 
evidence.  If  in  the  cases  within  the  operation  of  the  rule, 
the  «nly  confidence  reposed  was  a  confession  of  guilt  or  dis- 
honesty, the  rule  would  be  obviously  detrimental  to  the  interests 
of  justice  :  but  it  is  conceived,  that  in  a  multitude  of  instances,  a 
person  possessed  of  just  rights  would  be  materially  impeded  in 
vindicating  them,  if  every  communication  made  to  his  profes- 

(2)  R.  «.  Briimley,  6  T.  R.  330.  R.  and  I-ord  Kenyon  ruled,  that  a  prisoner, 
V.  St.  Peters,  Burr.  Sett.  Ca.  25.  S.  P.,  vvlio  liad  called  a  woman  as  liis  wife, 
and  see  Wells  v.  Fisher,  supra.  during  a  trial,  was  estopped  from  calling 

(3)  Wells  V.  Fisher,  1  i\Io.  &  Ro.  99.  her  as  a  witness  upon  the  same  trial. 
nam.  Wells  v.  Fletcher,  5  C.  &  P.  12.  Ches.  Cir.  1782,  cited  by  Chief  Baron 
Tiie  case  appears  to  have  been  decided  Richards,  in  Campbell  v.  Noconlow,  uhi 
on  the  ground  of  absence  of  bias,  which  supra.  See  Adey's  case.  Leach,  243. 
is  not  the  principle  on  which  the  objec-  IMace  v.  (^adell,  Cowp.  233.  Lord 
lion  turns.  But  where  there  is  not  a  le-  Kenyon's  decision  is  approved  of  by 
gal  marriage  there  appears  to  be  no  au-  Park,  .1.,  in  Batlhevvs  «.  Galir!do.  It 
ibority  for  excluding  the  evidence.  would  seem,  however,   improper  to  ex- 

(4)  Batlhews  «.  Galindo,  4  Bing.  610.  elude  competent  testimony  in  conse- 
Tlie  point  was  considered  doubtful  in  quence  of  the  misrepresentation  of  a 
Campbell   v.  Twemlow,   1   Price,   81,  parly. 


Sect.  3.]         Exclusion  of  Matters  disclosed^  Sfc. 


163 


sional  adviser  might  bo  used  against  him  ;  if  such  were  the  law, 
it  would  be  necessary,  in  self-defence,  to  accompany  all  com- 
munications made  to  a  professional  adviser,  with  a  statement 
of  the  several  circumstances  and  explanations,  which,  howev- 
er unnecessary  for  the  purpose  of  the  communication,  would 
be  requisite  to  prevent  it  from  being  unfairly  used.  And  it  is 
to  be  observed  that,  the  evidence  in  question,  being  generally 
a  species  of  hearsay  evidence,  is  open  to  much  objection  upon 
that  ground,  especially  as  it  would  generally  be  delivered  eith- 
er by  a  very  favourable  or  a  very  hostile    witness. 

The  privilege  is  that  of  the  client  and  not  of  the  profession-  ^'ature  of 
al  adviser ;  an  attorney  will  not  be  allowed,  against  his  client's  ''"^'  ^^^' 
will,  to  disclose  matters   of  professional   confidence,    though 
himself  willing  to  do  so.  (1)  (a)      The  client  may  waive  his 
privilege.  (2)     But  he  is  not  to   be  considered   as   waiving  it, 
by  calling  his  attorney  as  a  witness.  (3) 

With  respect  to  the  character  and  situation  of  the   persons  Communi 
*receivmg  the  communications,  it  is  to  be  observed,  that  this 
professional  privilege  extends  to  the  three  cases  of  counsel,  at- 
torney, and  solicitor.  (1) 

A  person  who  acts  as  interpreter  (2)  or  agent,  (3)  as  the 
organ  of  communication  between  an  attorney  and  his  client, 
stands  precisely  in  the  same  situation  as  the  attorney  himself; 
he  is  considered  as  the  organ  of  the  attorney,  and  is  under  the 
same  conditions  of  secresy.  An  attorney's  clerk  (4)  cannot 
be  called  to  prove  a  confidential  communication.  A  barrister's 
clerk  cannot  be  called  to  prove  the  date  of  his  master's  re- 
tainer. (5) 


cations  to 
what  per- 
sons uriv). 
legged. 

[  *175  ] 


(1)  B.  N.  P.  284.  Wilson  ».  Ras- 
t.-ill,  4  T.  R.  753.  Saiuiford  v.  Kensing- 
ton, 2  Yes.  Jun.  189. 

(2)  Merle  v.  IMore,  R.  &  M.  390. 
In  this  case  the  person  waiving  the  priv- 
ilege was  no't  a  party  to  the  suit. 

(.3)  Waldron  v.  Ward,  Styl.  449. 
Vaillant  v.  Dodemead,  2  Atk.  .524. 
The  case  decides  that  lie  cannot  be  ex- 
ninined  as  to  coniidential  ooinrnunica- 
lions  unconnected  with  tlie  suhject  of  the 
'juesiions  in  chief. 

(J)  Wilson  V.  Rastall,  4  T.  R.  759. 
Waldron  v.  Ward,  IStyl.  449.  In  l<ai- 
lie'.s  case,  21  St.  Tr.  353,  a  witness  ch- 
jected  to  be  examined  respecting  confi- 
dential communications  between  himsRlf 
and  the  opposite  party  in  a  cause,  at  Jii^ 
client's  request,  where  he  was  called  on 
by  his  client  to  disclose  them.  In  Cur- 
rey  v.  Walter,  1  lisp.  45(j,  it  wns  held 
to  be  at  the  option  of  a  counsel  (o  relate 
whut  waa  stated  by  him  in  making  amo- 


tion before  the  Court;  it  would  seem  that 
this  was  not  on  the  ground  of  confidence, 
but  of  the  privilege  ol' counsi'l  It  would 
seem  that  an  ;irbitrator  had  the  lil<e  |)riv- 
ilege,  not  on  the  ground  of  confidence, 
but  of  protection  to  liis  situation,  Elli.s  v. 
Soltan,  cited  4  C.  &,  P.  327.  Johnson 
V.  Duraat,  ibid.  Ilaber.shaw  v.  Treby, 
3  Esp.  38.  In  Martin  v.  Thornton,  4 
Esp.  181,  the  arbitrator  was  examined. 
In  Sparke  v.  Rliddleton,  1  Keli.  505,  pi. 
()8,  the  counsel  for  the  defendant  was 
called  by  the  plaintill"  and  wu3  allowed 
to  take  a  special  oath. 

(2)  J)u  IJarre  «.  Livetti,  Peake,  78, 
recognized  4  T.  11.  75G. 

(3)  Parkins  1).  Ilawksliaw,  2  St.  239, 
whether  the  |)rivilege  extends  to  ilie  ex- 
ecutor of  an  attorney.  .See  b'enwick  v. 
Reed,  I   Mer.  114. 

(4)  Taylor  1).  Foster,  2  C.  »<si  P.  195. 
II  V.  Upper  lioddington,  8  l>.  ,«i  R.  732. 

(5)  Poole  V.  Hay  lie,  R.  i;  M.  1G5. 


(a)  See  Scott  v.  Van  Alstyne,    9  .1,  R.  21(5. 


164 


Exclusion  of  Matters  disclosed 


[CIi.   IL 


But  a  person,  though  by  profession  an  attorney,  if  he  be  not 
employed  in  the  particular  business  which  is  the  subject  of 
inquiry,  as  wliere  he  is  undersheriff  at  the  time,  is  not  precki- 
ded  from  giving  evidence,  though  he  may  have  been  consult- 
ed confidentially.  (G)  And  it  had  been  ruled,  that  a  person  who 
consulted  confidentially,  on  the  supjiosition  of  his  being  an  at- 
torney, when,  in  fact,  he  was  not  one,  is  compellable  to  an- 
swer. (7) 

[  *176  ]  *The  professional  privilege  is  confined  to  the  cases  which 
have  been  enumerated.  (1)  There  are,  indeed,  cases,  said 
Mr.  Justice  Buller,  in  the  case  of  Wilson  v.  Rastall,  to  which 
it  is  much  to  be  lamented  that  the  law  of  privilege  is  not  ex- 
tended ;  those  in  which  medical  persons  are  obliged  to  declare 
the  information  which    they  have  acquired   by  attending   in 

nietiifaiad-  their  professional  characters.  (2)      This  point  was  much  con- 

^'****'  sidercd  in  the  Duchess  of  Kingston's  case,  where  Sir  C. 
Hawkins,  who  had  attended  the  duchess  as  a  medical  man, 
was  compelled  to  disclose  what  had  been  committed  to  him 
in  confidence.  (3)  Lord  Kenyon,  in  the  same  case  of  Wilson 
V.  Rastall  J  observed,  if  a  friend  could  not  reveal  what  was 
imparted  to  him  in  confidence,  what  is  to  become  of  many 

Frienrfs.  cascs  cveu  aflectiug  life,  for  instance  Dr.  Ratcliff^s  case  :  (4) 
and  if  the  privilege  claimed  extended  to  all  cases  and  persons. 
Lord  W.  Russell  died  by  the  hands  of  an  assassin  and  not  by 
the  hands  of  the  law  ;  for  his  friend.  Lord  Howard,  was  per- 
mitted to  give  evidence  of  confidential  conversations  between 
them.  (5) 

Bankers.  The  bankers  of  one  of  the  parties  in  a  cause  are  bound  to 

answer  as  to  the  amount  of  the  balance  of  such    party  on  a 

siewariis.    particular  day.  (6)     And  a  steward  is  not,  like  the  legal  adviser 


(6)  Wil^nn  r.  Rnstiill,  4  T.  R.  753. 
See  Rex  v.  Brewer,  6  C.  &  P.  363, 
Hill  V.  Elliot,  .5  C.  &  P.  43G. 

(7)  Fountain  V.  Young,  6  Esp.  113. 
Sir  D.  Eviins,  in  his  edition  of  I^othier, 
suggests  that  it  follosvs  from  Wilson  r. 
Rustall,  that  communications  to  a  con- 
veyancer are  not  privileged,  when  made 
to  him  in  tiiat  capacity,  though  he  may 
happen  to  be  a  counsel  or  attorney. 
But  in  Farquano  v.  Knight,  2  M.  & 
Wei.  100,  it  was  said  by  Lord  Abinger, 
C.  B.,  that  it  was  no  objection  to  an  at- 
torney's privilege  that  a  document  was 
brought  lo  him  in  the  character  of  a 
scrivener,  for  that  Lord  Nottingham  had 
laid  it  down,  that  he  would  not  compel 
a  scrivener  to  disclose  communications 
made  to  him,  Harvey  v.  Clayton,  2 
Swanst.  221,  n.  Anon.  Skinn.  404. 
In  the  same  case,  Parke,  B.,  observed, 
that  it  would  he  difficult  to  say  that  a  li- 
censed coQveyancer  was  privileged  as 
such. 


(1)  4  T.  R.  7oS.  Vaillant  r.  Dode- 
mead,  2  Atk,  524.  2  Swanst.  221. 
Stone  V.  Lord  G.  Lennox,  Lord  Chan- 
cellor's Cond.  AVest  ,Nov.  4,  1836.  It 
was  formerly  thought  that  a  trustee  was 
privileged,  B.  N.  P.  184. 

(2)  4  T.  R.  759.  See  also  R.  v. 
Gibbons,  1  C.  &  P.  97.  R.  v.  Sparkes, 
cited  in  Peake's  N.  P.  C.  77,  Du  Barre 
v.  Levette.  \N  hether  the  extension  of 
professional  confidence  to  tnedical  prac- 
titioners would  be  expedient,  may  admit 
of  considerable  question. 

(3)  20  Howell's  St.  Tr.  613,  614. 

(4)  18  Howell's  St.  Tr.  42S, 

(5)  9  Howell's  St.  Tr.  599.  It  may, 
with  great  reason,  be  questioned,  wheth- 
er, taking  into  consideration  all  the  cir- 
cumstances of  Lord  Russell's  trial,  it  is 
not  too  r\iucli  to  affirm  that  he  died  by 
the  hands  of  the  law. 

(6)  Loyd  V.  Freshfield,  2  C.  &  P. 
329. 


Sect.  3.]  in  Professional  Confidence.  165 

of  a  party,  protected  by  his  relative  situation,  from  the  disclo- 
sure of  his  knowledge  of  the   affairs   of  his  employer,  and  of 
the  existence  and  contents  of  instruments,  with  which  he  has 
become  acquainted  *in  consequence  of  his  employment.  (1)  A  [  *\77  J 
confession  to  a  clergyman  is  not  privileged.  (2)  (a)  ciergymdu. 

In  a  case  at  nisi  prius,  where  a  clerk  to  the  commissioners  c-'ierk  lo 
of  the  property-tax  was  called  to  prove  the  defendant  a  col-  sioners. 
lector,  and  refused  to  give  evidence,  on  the  ground  of  his  hav- 
ing taken  an  oath  of  office  not  to  disclose  what  he  should  learn 
as  clerk  respecting  the  property-tax,  except  with  the  consent 
of  the  commissioners  or  by  force  of  an  act  of  parliament,  the 
Court    held,    that   this    oath  would   not  exempt  the    witness,  oath  of  of- 
and  that    it  must   be    construed,   as   containing  an    implied  fice. 
exception  of     the    evidence  which   he   might   be    called  to 
give  in  courts  of  justice  in   obedience  to   the  writ  of  subpce- 
na.  (3)     In  an  early  case,  (4)  indeed,    where  the   defendant 
pleaded,  to  an  action  of  debt  on  a  bond,  the    statute   against 
buying  and  selling  of  offices,  and  called  a  witness  to  show  on 
what  occasion  the  bond  was  given,   Lord  Holt  is  said  to  have 
refused  his  evidence,  because  it  appeared,  that  he  was  private- 
ly intrusted  to  make  the  bargain,  and  to  keep  it  secret.       But 
the  principle  and  authority  of  this  case  seem  to  have  been  over- 
ruled by  that  of  Wilsoji  v.   Rastall,   and  the  later  decisions 
on  this  subject. 

With  respect  to  the  nature  of  the  communications  which  What  com- 
are  ^privileged,  it  maybe  observed,  that  the  cases  maybe  di-  pHvj'ietcd"^ 
vided  into  those  which  have  reference  to  some  suit,  and  those  [  *]78  J 
in  which  no  suit  was  in  contemplation. 

It  was  observed,    by  Lord    Ellenborough,  in    Gainsford  v.  Where  a 

suit  expeci- 
ed. 

(1 )  Lord  Falmouth  v.  I\Ioss,  1 1  Price,  it  had  been  decided  in  Giliiain's  case,  R. 
455.  The  question  related  to  the  points,  &  M.  Cr.  Cas.  194,  that  the  privilege 
whether  a  steward  could  l)e  allowed  to  did  not  extend  to  clergymen,  but  that  he 
say,  that  an  ancestor  of  his  employer  would  never  compel  a  clergyman  to  dis- 
granted  a  certain  lease,  and  whether  that  close  communications  made  to  him  by  a 
ancestor,  under  deeds  in  his  employer's  prisoner;  but  if  he  chose  to  disclose  them, 
possession,  took  an  estate  for  life.  The  he  should  receive  them  in  evidence. 
Court  guarded  ihenaselves  from  deciding  He  also  observed,  that  the  confidence,  in 
whether  a  steward  could  be  asked  gener-  the  case  of  attornies,  was  a  great  anom- 
al  questions  as  to  his  employer's  title  and  aly  in  the  law.  A  confession  to  a  Po- 
;is  to  deeds  in  his  possession.  That  stew-  pish  priest  has  been  held  not  to  be  privi- 
ards  are  not  privileged,  see  Vaillant  v.  leged.  Ilutlcr  «.  INIoore,  Macnally,  253. 
Dodemead,  2  Atk.  524.  Per  Buller,  J.,  In  Du  IJarre  ».  Livette,  Peake,  108, 
4  T.  II.  756.  Lord  Kenyon    apparently   dissents    from 

(2)  R.  15.  Sparkes,  cited  in  Du  Barre  the  decision  in  R.  v.  Sparkes.  A  peer  is 
V.  Livette,  Peake,  77,  the  confession  was  not  privileged,  11  St.  Tr.  246. 

/nade  by  a  Papist.      In  Broad  v.  Pitt,   3  (3)  Lee  q.  t.  v.  Birrel,  3  Canipb,  337. 

C.  &  P.  519,  Lord  Wynford  said,  that         (4)  Bull.  N.  P.  284. 

(a)  By  statute,  2  R.  S.  406  s.  72,  it  is  provided  that  "no  mini.ster  of  the  gospel, 
or  priest  of  any  denomination,  shall  be  allowed  to  disclose  any  confessions  made  to 
him  in  his  jjrofessional  char.icter  in  the  course  of  discipline  enjoined  by  the  rules  or 
practice  of  such  denomination."     The  People  v.  (iarrit  (iates,  13  Wend.  31 1. 

The  admissions  must  be  made  to  the  clergyman  in  his  professional  cliaracter  ; 
otherwise  llicy  are  not  privileged,  id. 


166  Exclusion  of  Matters  disclosed  [Cli.   11. 

Grammar^  (1)  that  it  had  boon  cstabhshcd  hi  Cohdcn  v.  Kcn- 
drick{2)  and  Wilson  v.  Rastall.  (3)  that  communications  by  a 
])arty  to  a  witness,  whether  prior  or  subsequent  to  the  relation 
of  cHcnt  and  attorney  subsisting  between  them,  were  not  priv- 
ileged, but  that  this  relation  might  be  formed  before  the  com- 
mencement of  any  suit.  For  an  attorney  may  be  retained  and 
confided  in  as  such,  before  the  commencement  of  any  suit,  and 
in  such  a  case,  he  is  not  bound  to  disclose  whatever  has  been  re- 
vealed to  him  previous  to  tlie  suing  out  of  the  writ.  1\\  Clark  v. 
Clark,  (4)  Lord  Tenterden  observed,  "  suppose  a  party  to 
consult  his  attorney  Avhether  or  no  he  should  bring  or  resist 
an  action,  it  could  not  be  doubted  that  such  a  communication 
would  be  privileged  though  no  suit  was  pending  at  the  time  :" 
and  he  held,  that  where  a  matter  was  in  dispute  and  contro- 
versy, although  no  cause  was  in  existence  with  respect  to  it, 
the  communication  was  privileged. 
Communi-  But,  although  a  suit  be  pending  or  recently  terminated, 
cations  col-  communications  made  to  a  counsel  or  attorney  by  his   client 

lateral  to  .      ,  i     -r-     i  i  ,  ■      i  • 

suit.  are  not  privileged,  it  they  are  not  made   to  the  person  in  his 

capacity  of  counsel  or  attorney,  or  for  the  purposes  of  the  suit. 
Thus,  in  the  great  case  of  Aiinesly  v.  Lordj  Ang-lcsea,  the  at- 
torney of  a  prosecutor  of  an  indictment  was  allowed  to  state 
what  his  client  had  observed  to  him,  pending  the  proceedings 
on  the  indictment,  viz.  that  he  would  give  a  large  sum  of 
money  to  have  the  prisoner  hanged.  (.5) 

[  *179  ]  *Where  a  person  (who  had  brought  an  action  on  a  promis- 
sory note,  which  was  afterwards  compromised  by  the  defend- 
ant,) had  informed  the  attorney,  after  the  compromise,  and  in 
the  interval  between  the  time  when  a  warrant  of  attorney 
was  given,  and  that  at  which  the  money  was  to  become  due, 
that  there  never  had  been  any  consideration  for  the  note,  the 
Court  of  King's  Bench  held,  that  the  attorney  was  compella- 
ble to  disclose  that  circumstance,  in  an  action  brought  to  re- 
cover back  the  money.  "  The  communication,"  said  Lord 
Kenyon,  "  was  not  here  made  in  contemplation  of  a  suit :  on 
the  contrary,  the  purpose  in  view  had  been  already  obtained  ; 
and  what  was  said  by  the  client  was  from  exultation,  in  hav- 
ing before  deceived  his  attorney  as  well  as  his  adversary."(l) 
But  where  confidential  communications  have  been  made  to 
an  attorney  with  reference  to  a  suit,  the  attorney  will  not  be 
at  liberty  to  divulge  them  when  the  suit  is  determined ;  his 

(1)  2  Camplj.   10.  in  Williams  u.  Mundie,    R.    &    M.    34, 

(2)  t  T.  R.  431.  was  too  narrow,  and  it  would  seem  that 

(3)  Ibid.    753,  and  see  Cuts  v.  Pick-  a  formal  retainer  is  not  essential, 
ering,  1  Ventr.  197,  as  to  matters  com-  (o)  Annesiy  v.  Lord  Anglesea,  17 
inunicated  before  the  retainer.  Howell's  St.  Tr.  1221,  where  the   suh- 

(4)  1    M.  &  Ro.    5.      In  this   case,  ject  of  the  privilege  is  very  fully  discuss- 
Lord  Tenterden  says,  that   the   doctrine  ed. 
reported  to  have  been  laid  down  by  him  (I)  Cobden  v.  Kenrick,  4  T.  R.  432. 


Suit  closed. 


tSccl.  3.]  in  Professional  Confidence.  167 

mouth  is  closed  forever.(2)     And  the  confidence  conliuues,  A'lf'ney 

IT  r  1  changed. 

though  the  attorney  has  ceased  to  act  for  the   party,  and  an- 
other attorney  conducts  the  suit. (3) 

The  privilep;e  of  professional  confidence  is   not  limited  to  Where  no 

.  ,  .    ,  .^  .       .  ,      .  .„,  .      .  .^         suit  expect- 

cases,  ni  which  a  suit  is  in  contemplation.  1  his  is  manliest  ed. 
from  the  authorities  which  will  he  presently  noticed,  in  which 
the  attornies  of  strangers  to  a  suit,  upon  the  trial  of  which 
they  are  called  as  witnesses,  have  not  been  allowed  to  reveal 
matters,  of  which  they  have  acquired  knowledge  through  the 
professional  confidence  of  their  clients.  But,  as  between  the 
parties  to  a  suit,  it  is  only  lately  that  the  law  has  been  reliev- 
ed from  much  perplexity,  where  professional  confidence  has 
existed  but  has  been  unconnected  with  the  immediate  suit. 
Upon  a  consultation  on  the  express  subject  between  the  Lord 
Chancellor,  the  two  Lord  Chief  Justices,  and  the  Lord  Chief 
Baron,  they  considered  that  the  privilege  was  not  confined  to 
cases  *where  the  communication  related  to  the  bringing  or  [  *1S0  ] 
defending  an  action.(l) 

It  should  seem  that  the  privilege  extends  to  all  cases  where 
a  communication  is  made  to  an  attorney  or  other  legal  adviser 
in  his  professional  capacity  ;(2)  and  that  the  rule  is  correlative 
with  that  which  governs  the  summary  jurisdiction  of  the 
Courts  over  attornies.(3)  That  rule  has  been  thus  laid  down  : 
"  Where  an  attorney  is  employed  in  a  matter  wholly  uncon- 
nected with  his  professional  character,  the  Court  will  not  in- 
terfere in  a  summary  way  to  compel  him  to  execute  faithfully 
the  trust  reposed  in  him.  But  when  the  employment  is  so 
connected  with  his  professional  character,  as  to  atford  a  pre- 
sumption that  his  character  formed  the  ground  of  his  employ- 
ment by  the  client,  there  the  Court  will  exercise  this  juris- 
diction."(4) 

It  has  been  held,  that  communications  made  between  a  cli-  Sale  of  es- 
ent  and  his  attorney   respecting  the   sale  and  purchase  of  es-  ^^'^" 
tates  are  privileged,  although  no  suit  be   either  exisisting   or 

(2)  Per  TJuller,  J.,  in  V/ilson  v.  Has-  B.  &  Ad.  870.     Deed.  Shellard  v.  Uar- 

tall,  4  T.  R.  753.  ris,    5   C.   &   P.   594.      iSoe    2    Swaiiyl. 

(:))   Parker  «.  Vates,   12  Moore,  520.  liJIt,    n. 

l^etrie's   case,    cited    4  T.  R.  75(),  and  (2)   See    Doe   v.    Harris,    5  C  &  P. 

the  cases  infra,  when  the    clients  were  59o.      Walker   v.    Wildnian,    (j    l\huld. 

strangers  to  the  suit.  47,  and    cases    cited    iti    the    last    note. 

(1)    Ex    relatione    Parke,     .T.,     in  Doe  d.  Peter  tj.  Vv'atkins,  3  Bing.  P.  C 

Rloore  V.  Terrel,  4  B.  &  Ad.   870,   and  421. 

in  Doe  v.  Harris,  5  C.  &  P.  5!)3.      The  (3)  Turquano    v.  Knight,    2    M.    & 

authorities   for   restricting   the   privilege  Wei.  101.     Per  Alderson,  .1.,  the  Court 

were  Williains  u.  IMundie,  R.  Sc  M.  3  1.  adverted    to    the   case  of  Greenough   v. 

Broad    v.  Vetct,  M.  &  M.  233.     Dullin  (iaskell,    1    IMyl.    &    K.    'JS,   as  one  in 

«.  Smith,   Peake,    108.      \\  adsworth  u.  which    all   the    authorities  had  been  re- 

]lanish!iw,  2  i5r.  &  B.   5,  n.      The    au-  viewed. 

ihorities  for  the  more  extensive  privilege  (4)   Ex  parte  AMmw,    4    B.  &,  Aid. 

arc    GIreeniiough  v.  Oaskell,    ."Myhie   i^i;  4!).      Kx  i)artc  Yeuttuan,  4   Dowl.    P. 

Keen,    98.       liilton   n.    (Corporation    of  C.  IJUy. 
Liverpool,  ib.  88.     JMoorc  v.  'J  yrrell,  4 


108  Exclusion  of  Matters  disclosed  [Ch.   li. 

Instructions  expected  (5)     And  whore  instructions  had  been  given   to  an 

for  frauclu-  ^  r  i  ■  i        i  ■   •    .         i  .■  , 

lent  deed,  attorney  lor  arawnig  a  deed  which  tlie  attorney  refused  to 
draw,  and  the  deed  was  drawn  by  another  person ;  the  valid- 
ity of  the  deed  being  afterwards  questioned  on  the  ground  of 
fraud,  in  an  action  against  the  slicrilf,  in  which  the  attorney 
first  apjjhed   to    was   not   employed,    the   Court  of  Common 

[  *1S1  j  IMeas,  *rel"used  a  rule  itisi  for  a  new  trial,  on  the  ground  that 
the  evidence  of  the  attorney,  as  to  the  instructions  he  had  re- 

ptnver'5  ccivcd  for  drawing  the  deed,  had  been  rejected.(l)  An  at- 
torney will  not  be  allowed  to  make  a  statement,  derived  from 
a  knowledge  of  his  client's  title,  tliat  his  client  has  no  power 
to  grant  freehold  leases. (2)  In  an  action  of  trover  for  a  lease, 
brought  by  the  assignees  of  a  bankrupt,  it  was  pleaded,  that 
before  the  bankruptcy  the  bankrupt  deposited  the  lease  with 

''("Tr?^"""  ^^^^  defendant  as  a  collateral  security  ;  at  the  trial  the  plain- 
tiii's  endeavoured  to  show  that  the  lease  was  deposited  after  an 
act  of  bankruptcy,  and  they  pro])osed  to  ask  a  witness,  who 
had  been  the  attorney  for  the  baidcrupt  after  the  act  of  bank- 
ruptcy, and  who  had  been  applied  to  by  him  to  raise  the  mon- 
ey, whether  the  bankrupt  had  not  the  lease  in  his  possession 
at  that  time,  and  whether  he  had  not  brought  it  to  him  for 
the  purpose  of  raising  money  on  it.  It  was  held,  that  the 
witness  could  not  be  allowed  to  answer  the  question.(3) 

A  communication  made  to  a  solicitor,  if  confidential,  is 
privileged,  in  whatever  form  made.  If  it  would  be  privi- 
leged, when  communicated  in  words,  spoken  or  written,  it 
vv^ill  be  privileged  equally  when  conveyed  by  means  of  sight 
instead  of  words.  Thus,  an  attorney  cannot  give  evidence 
as  to  the  fact  of  the  destruction  of  an  instrument,  Avhich  he 
has  been  admitted  in  confidence  to  see  destroyed.(4) 

ProdiK-iimi  The  principle  of  protection,  afforded  to  professional  confi- 
dence in  regard  to  communications  made  by  a  client,  must 
obviously  preclude  an  attorney  from  producing  or  disclosing 
the  contents  of  deeds  or  other  papers  deposited  with  him  con- 
fidentially in  his  professional  character.  "The  names,  times, 
or  dates  contained  in  a  written  instrument,"  said  Lord  EUen- 

[  *183  J  borough,  *"  though  not  known  from  the  communication  of  the 
client,  yet  they  come  to  the  knowledge  of  the  attorney  from 

(5)  Mynn  v.  Jolill'e,  1  M.  &  Ror!27.  criuity  upon  tliis  sulijeot,   and    as    to  tho 

See  also    a    c.nse   cited   to.  U'\v.d    before  piO(Juctii)n  of  cases  subtriilted  to  counsel, 

Piirke,   J.,   and    per    Richardson,  .r.,  in  and  their   opinions  upon  sucli  cases,  see 

Coitnucli  V.  Ileathcote,  2  13r.  &  0.  6.  Hare  on  Discovery,  Chap.  III. 

(1)   CorniacU  v.  Ileathcote.    2  Br.  &  (2)   Moore  v.  Terrel,  4  B.  &  Ad.  S7S. 

B.  4,  and  see  Doedem.  Shellard  v.  liar-  (3)  Turijuano  ().  Knight,  2  ftl.  &  W'el. 

ris,  5  U.  &  P.  594.     The   witness   can-  98.     It  was  stated  to  be  no  ol)jeotii>n  l(^ 

not  be  interrogated,  wliether  llie  advice  tlie  privilege,  tiiat  the  lease  was  brought 

was  asked  for  a  lawful  or  unlawful  pur-  to  the  attorney  in  the  ciiaracler  of  a  scri- 

pose,  ib.     Sec  Anon.  Hkinn.  404,  Vin.  vener. 
Ab.  (B.  a.)  pi.  10.     For  the  decisions  in         (4)  Kobson  v.  Kernp.  5  Esp.  54. 


Sect.  3.]  i?i  Professional  Confidence.  1G9 

the  delivery  of  the  instrument  by  his  chent."  (1)  If  a  deed 
dejDOsited  confidentially  with  an  attorney  has  been  obtained 
out  of  his  hands  for  the  purpose  of  being  produced  in  evi- 
dence by  another  witness,  it  cannot  be  received.  Thus,  in  a 
case  tried  before  Mr.  Justice  Bayley,  the  plaintiffs  counsel 
having  proved  a  certain  deed  in  the  possession  of  the  defend- 
ant, and  the  defendant  refusing  to  produce  it,  though  he  ad- 
mitted having  received  notice,  the  counsel  for  the  plaintiff  of- 
fered in  evidence  a  copy  of  the  deed,  which  had  been  obtain- 
ed from  one  who  many  years  ago  acted  as  attorney  for  the 
person  under  whom  the  defendant  claimed,  and  Avho  had  been 
entrusted  by  him  with  the  original  deed  in  his  professional 
character.  The  counsel,  on  the  part  of  the  defendant,  object- 
ed that  this  evidence  ought  not  to  be  received,  as  the  origi- 
nal deed  had  been  deposited  confidentially  with  the  attorney, 
and  Mr.  Justice  Bayley  refused  to  admit  it.  He  said,  "the 
attorney  could  not  give  parol  evidence  of  the  contents  of  the 
deed  Avhich  had  been  entrusted  to  him  ;  so  neither  could  he 
furnish  a  copy.  He  ought  not  to  have  communicated  to  oth- 
ers what  was  deposited  with  him  in  confidence,  v^^hether  it 
was  a  written  or  verbal  communication.  It  is  the  privilege 
of  his  client  and  continues  from  first  to  last. "(2) 

The  obligation  of  secresy  has  been  enforced,  between  at-  Rule  in 
tornev  and  client,  even  in  a  case  where  the  interests  of  crimi-  P'""*^*"- 

.  •'  '  .  lions. 

nal  justice  were  concerned.(3)  In  a  prosecution  for  the  for- 
gery of  a  promissory  note,  an  attorney,  who  had  the  note  in 
his  possession,  refused  to  produce  it  before  the  clerk  of  ar- 
raigns, who  required  it  for  the  purpose  of  setting  it  out  in  the 
indictment :  upon  *which  he  was  summoned  to  appear  before  [  *183  1 
the  judge,  and  show  cause  why  he  should  not  produce  the 
note.  He  accordingly  attended,  together  with  counsel  for 
the  prosecution,  and  counsel  for  the  prisoner.  Mr.  Justice 
Holroyd  inquired  minutely  into  the  circumstances,  by  which 
he  had  the  note  in  his  possession  ;  when  it  appeared,  on  the 
statement  of  the  attorney,  that  he  had  been  consulted  by  the 
jjrisoncr  on  the  note  in  question,  and  that  by  his  direction  he 
had  commenced  an  actibn,  to  recover  the  amount  of  the  note, 
against  the  person  in  whose  name  it  was  now  supposed  to  be 

(1)  Ikand  U.  Ackertnan,  5  Ksp.  119.  and  pnpcrs  mii^lit  liavt;  lieeii  seized,  if 
And  see  Bath  v.  Kinsey,  1  Cr.  M.  &,  It.  they  luid  heen  delivered  hack  by  the  at- 
•12.  tornev  to  the  client,  the  cases  are  di*tin- 

(2)  Fisher  v.  Ileming,  Leic.  Lent  guishahio  IVoiii  ihotie  in  whicfi  confes- 
Ass.  1809.  See  Hottoiidy  v.  Ushorno,  sions  are  made  to  professional  advisers. 
I'eaUe's  Add.  Ca.  101,  after  a  notice  to  In  the  case  in  the  text,  and  in  R.  v. 
|iroduce.  CooU  v.  Hcarn,  1  M.  &.  ilo.  Dixon,  a  greater  privilege  was  given  to 
201,  custody  of  a  rulo' of  ('ourt.  the  atlornoy  than  would    have    heIon<Ted 

(3)  R.  I).  Stnilh,  Derhy  Sum.  Ass.  to  the  client,  and  that,  in  a  case  where 
1822.  In  support  of  this  decision,  see  the  interests  of  the  state  re(|uircd  the  [iro- 
U.  0.  Dixon,  .3  Burr.    1687.       It  would  duction  of  the  evidence. 

seem,  that  as  in  these  cabcs   the   notes 

22 


170  Exclusion  of  Matters  disclosed  [Ch.   11. 

forged  :  that  a  short  time  afterwards,  he  had  been  summoned 
before  a  magistrate,  when  the  prisoner  was  apprehended  on  a 
-  charge  of  forgery,  and  he  was  then  desired  to  produce  the 
note  :  upon  this,  ho  inquired  of  the  ])risoner,  who  was  pres- 
ent, whether  he  would  consent  to  its  being  produced  :  the 
prisoner  consented,  asserting  his  innocence,  and  the  note  was 
accordingly  produced.  The  magistrate,  after  taking  the  de- 
jjositions  of  witnesses,  remarked,  that  he  thought  it  would  be 
proper  to  deposit  the  note  in  tlie  liands  of  the  high  constable  : 
on  which  the  attorney  said,  that  as  the  note  had  come  into 
his  hands  professionally  from  his  client,  he  expected  to  have 
it  restored  to  him,  at  the  same  time  asking  the  prisoner, 
whether  he  would  consent  to  its  being  deposited  with  the 
high  constable,  and  the  prisoner  replied,  he  wished  it  to  be 
placed  in  the  hands  of  his  attorney.  The  magistrate  returned 
the  note  to  the  attorney,  observing,  that  he  would  doubtless 
have  notice  to  produce  it  at  the  trial.  The  attorney  (who 
was  not,  however,  employed  professionally  for  the  prisoner  in 
the  ensuing  trial,)  had  been  sahpanacd  to  produce  the  note, 
which  was  still  in  his  possession  ;  but,  before  he  was  subpoe- 
naed, a  demand  of  the  note  had  been  made  upon  him  by  the 
attorney  now  employed  in  the  prisoner's  defence.  On  these 
facts  the  question  was  argued  by  the  counsel  for  the  prosecu- 
tion, and  the  counsel  for  the  prisoner;  and  Mr.  .Justice  Hol- 
royd  said,  he  would  consider  the  point.  On  the  following 
day  the  subject  was  again  mentioned,  when  Mr.  Justice  Hol- 
royd  refused  to  make  an  order  upon  the  attorney  to  produce 
the  note,  or  to  give  a  copy  of  it,  to  the  clerk  of  arraigns.  A 
bill,  charging  the  prisoner  with  forgery,  was  prepared,  and 
r  *184  1  *found  by  the  grand  jury.  At  the  trial,  the  same  attorney 
was  called,  on  the  part  of  the  prosecution,  for  the  purpose  of 
producing  the  note  ;  and,  on  his  re-stating  the  facts  above  de- 
tailed, the  learned  Judge  declared  his  opinion,  that  he  ought 
not  to  produce  it.  Secondary  evidence  of  its  contents  was 
not  offered ;  the  prosecution  consequently  failed  ;  and  the 
prisoner  was  acquitted. 
Attorney  of  Where  a  deed  or  other  paper  is  intrusted  to  an  attorney  by 
two  ijcr-  ^^yQ  persons,  the  attorney  must,  as  against  strangers,  keep  it 
according  to  the  nature  of  his  original  employment,  and  sub- 
ject to  persons  by  whom  he  is  employed  :  and  therefore,  when 
a  vendor  the  rights  of  both  had  a  draft  of  a  conveyance  made 
by  his  own  attorney,  from  which  title  deeds  were  afterwards 
prepared,  and  the  attorney  was  paid  for  his  business  by  the 
vendor  and  purchaser  in  moities  by  agreement,  but  the  latter 
employed  an  attorney  on  his  own  part  to  look  over  the  draft, 
and  the  draft  remained  afterwards  with  the  vendor's  attor- 
ney ;  it  was  held,  that  such  draft  was  confidentially  deposited 
with  the  vendor's  attorney    by  the  purchaser,  as  well  as   by 


suns. 


Sect.  3,]  in  Professional  Confidence.  171 

the  vendor,  and  that  it  could  not  be  produced  at  the  trial 
against  the  interest  of  the  purchaser's  devisees,  though  with 
the  consent  of  the  vendor  and  his  attorney.(l)  So  an  attor- 
ney, who  being  resorted  to  by  a  borrower  to  raise  money  for 
him  peruses,  on  the  part  of  the  proposed  lender,  the  abstracts 
of  the  borrower,  is  not  allowed  to  give  evidence  concerning 
them  against  the  borrower.  (2)  But  communications  made  to 
an  attorney  acting  as  such  between  two  parties,  are  not  priv- 
ileged from  disclosure  against  either  party,  each  party  having 
a  right  to  such  disclosure.(3) 

The  protection  atibrded  to  professional  confidence,    applies  Attorney  of 

■»  •  •      straii^'Gr  to 

not  only  to  the  professional  advisers  ot  the  parties  to  a  suit  suit. "" 
*but  also  to  the  professional  advisers  of  strangers  to  the  suit.  [  *\So  ] 
(1)  Though  it  is  convenient  to  collect  the  cases  respecting 
])rofessional  confidence  in  the  same  chapter,  the  protection  af- 
forded to  such  disclosures,  when  made  by  strangers,  is  foun- 
ded on  principles  which  are  reserved  for  consideration  in  the 
chapter  which  treats  of  the  examination  of  witnesses. 

(Questions  of  this  nature  can  seldom  occur  in  regard  to  ver-  Verbal 
bal   communications,    in  consequence  of  the  rule   which  ex-  caUoo's"'' 
eludes  hearsay  evidence.       But   they  have  not   unfrequently 
arisen,  where  an  attorney  has  been  called  upon  to  produce  the 
title  deeds  of  a  stranger  to  a  suit,   which  have  been  confiden- 
tially deposited  with  him.     In  an  action   against    the    sheriff 
for  an  escape,  it  has  been  held,  that  the  attorney  for  the  orig- 
inal defendant   could  not  be  called  to  prove  the  debt,  where 
he  became  acquainted  with   the  business  only  from  the  infer-    , 
mation  of  his  client.  (2) 

The  attorney  of  a  stranger  to  the  cause    cannot   produce  a  Case  of 
case  with  the  opinion  of  counsel,  which   he  holds  confiden-  °P'"'""' 
tially  for  his  client.  (3)     On  a  question  of  settlement,  a  mort- 
gagee, a  rated  inhabitant  of  the  appellant  parish,    subpcenaed 

(1)  Doe  dem.  Stroder  r.  Seaton,  2  M.  &  Ro.  391,  tamen  quesre,  as  tlie 
Ad   &  Ell.  171.  privilege  is  not  allowed  out  of  rcg.ird  to 

(2)  Doe  dem.  Peter  v.  Watkins,  .3  the  interests  of  the  parties  to  the  cause. 
Ring.  N.  C.  421,  and  see  Taylor  w.  See,  however,  Doe  d.  Peter  v.  Watkins, 
Blacklow,  .3  Bing.  N.  C    235.  3  Bing.  iN.  C.  421. 

(3)  Cleeve  v.  Powell,  1  M.  &  Ro.  (2)  Keman  v.  SherilT  of  London,  2 
228.  Braughe  v.  Cradock,  1  M.  k  Ro.  Esp.  GOO,  and  see  Merle  v.  Rlooro.  R. 
182.  See  Rohson  v.  Kemp,  4  Esp.  23.5,  &  M.  390.  Bowman  v.  Norton,  .'J  C. 
where  the  assignees  of  one  of  two  per-  &.  P.  177,  communications  by  a  bank- 
sons  employing  an  attorney  to  prepare  a  rupt  to  his  attorney.  Turquano  v. 
deed  were  not  allowed  to  use  the  attor-  Knight,  2  ftl.  &  Wei.  9S,  supra. 
ney's  evidence  against  the  other,  alleg-  (3)  R.  v.  VVoodley,  1  M.  &  Ro. 
ing  fraud.  390.     See  Ditcher  v.  Kendrick,  1  C.  8t 

(1)  R.  ?'.  Withers,    2    Campb.    578,  P.  161.     It  does  not  appear  whether,  in 

If  the  judge  improperly  receives  such  ev-  this  case,  the  deed  was    a    document  of 

idence,  the  party  to  the  suit  cannot  avail  title.     It  would  seem  that  the  attorney's 

himself  of  the  objection.       Marston  r.  privilege  was  not    more    extensive    than 

Downes,  1  Ad.  k.  El.  31.      It   has  been  that  of  his  client  ;  and  in  Doe  i).  Thom- 

held,  that  the  counsel  in  the  cause  have  as,  9  15.  &  (,'.  2SS,  it  seems  to  have  been 

a  right  to  argue  the   aditiissibility  of  the  considered  that  the  jirivilego  was  conliii- 

evidence  at  the  trial.     R.  v.  Woodley,  I  ed  to  docuineuts  of  title. 


17'2  Exclusion  of  Matters  disclosed  [Ch.   11. 

by  the  respondent  parish,  was  held  not  compellable  to  produce 
Tiiie  deeds,  the  title  deeds  of  the  mortgagors  ;  and  that  he  was  not  at 
liberty  to  produce  an  abstract  of  the  deeds,  or  to  give  parol 
evidence  of  their  contents.  (4)  In  like  manner,  it  has  been 
held,  that  tlie  solicitor  of  one  of  the  parties  to  a  deed  of  com- 
[  *186  ]  position  *is  not  compellable  to  produce  it  in  an  action  between 
strangers.  (1) 

But  where,  by  an  order  of  the  Court  of  Chancery,  made  in  a 
suit  depending  between  a  lessor  and  a  lessee,  a  lease  was  de- 
posited in  the  hands  of  the  lessor's  attorney,  the  lessee  being 
at  liberty  to  inspect  the  same,  it  was  held,  in  an  action  of 
ejectment  brought  by  the  lessee  against  the  tenant  in  posses- 
sion, that  the  attorney  of  the  lessor  was  bound  to  produce  the 
lease,  it  not  being  part  of  the  lessor's  title.  (2) 
Inspection        Wlierc  an  attorney  is  called   upon  to  produce  deeds  or  pa- 

Dv  court  ... 

pers  belonging  to  his  client,  who  is  not  a  party  to  the  suit, 
the  Court  will  inspect  the  documents,  and  pronounce  upon 
their  admissibility,  according  as  their  production  may  appear 
to  be  prejudicial  or  not  to  the  client  ;  in  like  manner,  as  where 
a  witness  objects  to  the  production  of  his  own  title  deeds.  (3) 
Bankruptcy  Aud,   notwithstanding    some   conflicting  opinions,   the    same 

proceed-  '  i       i      i  i    •  r  \-  i 

ings.  rule  appears  to  be  held  in  respect  of  proceedmgs  or  documents 

in  the  custody  of  solicitors  for  assignees  of  bankrupts.  (4) 
Communi-  The  attorney  of  a  party  in  the  cause  may  be  examined,  like 
privXged.  ^"^Y  Other  witness,  as  to  any  collateral  fact  with  which  he 
has  become  acquainted,  otherwise  than  from  a  disclosure  or 
confession  by  his  client.  Thus,  if  he  is  the  subscribing  wit- 
ness to  a  deed,  he  may  be  examined  concerning  its  execu- 
tion. (5)(a) 

(4)   R.  V.  Upper  Boddington,  S  D.  &  to  be  bound  to  produce  tlie  proceedings, 

R.  726.  apparently  on  llie  ground  that  tlieir  pro- 

(1)  Harris  r.  Hill,  3  Str.  140.  As  to  duction  might  prejudice  another  cause 
the  admissibility  of  secondary  evidence  which  was  pending.  The  objection  was 
in  such  cases,  see  infra,  part  2,  on  the  supported  by  the  counsel  for  the  defend- 
proof  of  deeds.  ants.     In    Hawkins  i'.  Howard,    supra, 

(2)  Doe  d.  Courtail  v.  Thomas,  9  B.  the  solicitor  was  bound  to  produce  the 
&  C.  2S8.  the  proceedings,   as  the  assignees  would 

(3)  Copeland  v.  Watts,  I  Str.  93.  not  be  affected  liy  the  verdict,  and  there 
Hawkins  v.  Howard,  R.  &  M.  64.  was  but  a  possibility  of  their  being  pre- 

(4)  See  Laing  V.  Barclay,  3  Str.  38.  judiced.  In  Pearson  u.  Fletcher,  sujjra, 
Hawkins  v.  Howard,  R.  &  M.  64.  Lord  Ellenborough  considered  the  pro- 
Bateson  v.  Hartsink,  4  Esp.  43.  Pear-  duction  of  bankruptcy  proceedings  a 
son   J).    Fletciier,    5   Esp.  9,     Corsen  v.  matter  of  public  duty. 

Duboits,  Holt,  239.  Cohen  v.  Templar,         (5)  Doe     dem.    Jupp    r.    Andrews, 

2  Str.  2(iO.     Nixon   v.  Mayoh,  1  M.  &  Cowp.   846.     Robson  v.  Kemp,  4  Esp, 

R.  76.     In  Laing  v.  Barclay,  iupra,  the  235.     5  Esp.  53. 
solicitor  for  the  commission  was  held  not 

(a)  Although  an  attorney  is  not  obliged  to  produce  a  paper  committed  to  him  by 
his  client,  3  Day,  499;  8  Mass.  370  ;  lie  may  be  e.vamined  in  regard  to  a  fact,  as 
whether  a  certain  note  left  with  him  to   collect  was  indorsed. 

See  the  case  of  Brandt  v.  Klein,  17  J.  R.  338,  as  to  what  facts  an  attorney  or 
eounsel  may  testify. 


Sect.  3.]  i?i  Professional  Confidence.  173 

*If  there  be  a  question  about  au  erasure  in  a  deed  or  will,  [  *i87  J 
he  may  be  asked,  whether  he  had  ever  seen  the  instrument 
in  any  other  state.  (1)  If  an  attorney  were  present  when  his 
cHent  was  sworn  to  an  anwer  in  Chancery,  he  might  be  a  wit- 
ness, on  an  indictment  for  perjury,  to  prove  the  fact  of  taking 
the  oath,  which  is  not  a  fact  peculiarly  within  his  knowledge 
as  an  attorney,  and  not  communicated  to  him  in  secresy.  (2) 
So  the  attorney  of  one  of  the  parties  may  be  examined  as  to 
the  contents  of  a  written  notice,  which  had  been  received  by 
him  in  the  course  of  the  cause,  requiring  him  to  produce  pa- 
pers. (3)  On  the  same  principle,  and  with  the  like  qualifica- 
tion, an  attorney  was  admitted  by  Lord  Kenyon.  in  an  action 
of  debt  upon  a  bond,  to  prove  that  the  bond  had  been  given 
on  an  usurious  consideration.  (4) 

An  attorney  conducting  a  cause  in  Court  may  be  called  as 
a  witness  by  the  opposite  side,  and  asked  as  to  his  employer, 
in  order  to  shew  the  real  party,  and  let  in  his  declarations.  (5) 
He  may  be  called  to  prove  the  identity  of  the  defendants  to  a 
suit,  though  he  knows  nothing  of  them,  but  from  his  inter- 
course with  them  professionally  ;  (6)  he  may  prove  that  his  cli- 
ent is  in  the  possession  of  a  particular  document,  so  as  to  let 
in  secondary  evidence  of  its  contents  (7)  ;  and  he  may  prove 
his  client's  hand-writing.  (8) 

But  it  seems,  that  cases  of  the  above  description  must  be 
understood  with  a  limitation,  that  the  privilege  extends  to  all 
knowledge  that  the  attorney  obtains,  which  he  would  not 
have  obtained,  from  his  being  consulted  professionally  by  his 
chent.  And  it  has  accordingly  been  held,  that  an  attorney 
is  not  compellable  to  state  whether  a  document  shewn  to  him 
by  his  client,  in  the  course  of  a  professional  interview,  was 
in  *the  same  state  as  when  produced  on  the  trial,  as,  for  exam-  [  *188  ] 
pie,  whether  it  was  stamped  or  not.  (1) 

It  is  obvious,  that  communications  by  an  attorney  to  the 
opposite  party  or  to  strangers,  and  communications  between  a 
plaintiff  and  defendant,  in  the  presence  of  an  attorney,  do  not 
fall  within  the  principle  or  terms  of  the  rule,  which  protects 
private  communications  between  parties  and  their  profession- 

,(1)  B.  N.  p.  284.     1  Ventr.  197.  (7)  Bevan  v.  Waters,  M.  k,  M.    235. 

(2)  B.  N.  P.  284.     By  Lord   Mans-         <8)  2  Hawk.  ch.  46,  s.  89. 

field,  C.  J.,  ia  Cowper,  846.  (1)  Wheailcy   v.   Williams,    1  M.  & 

(3)  Spenceley  v.  Scliullenberg,  7  W.  .033.  It  was  said  that  the  case  in 
East,  357.  B.  N.   P.    284,  must    apply    to    a    case 

(4)  DulTin  V.  Smith,  Peake,  108.  where  the  attorney  has  his  knowlede  in- 

(5)  Levy  v.  Pope,  M.  &  M.  416.  depeiidently  of  any  coininunication  from 

(6)  Studdy  v.  Sanders,  3  D.  &  R.  his  client;  and  that  if  a  document  be  ex- 
347.  For  other  exainples  see  Beckwith  hibited  in  pursuance  of  a  confidential 
V.  Bonner,  6  C.  &  1*.  681.  Hurd  v.  consultation,  all  that  appears  on  the  face 
Maring,  !  C.  &  P.  372.  Kike  v.  Nokes,  of  the  document  is  a  part  joftbe  comjuu- 
M.  <fc  M.  303.     R.  V.  Watkinson,  2  Str.  nication. 

il22,  with  the  quare  of  the  Reporter. 


174  Exclusion  of  Matters  disclosed  [Ch.   11. 

al  advisers.  (2)  The  rule  is  also  inapplicable  to  admissions 
or  proposals  of  compromise  made  by  counsel  or  attornies  ; 
these  will  be  considered  afterwards,  in  that  part  of  the  Work 
Avhich  treats  of  admissions  by  ai^euls. 

Communications  made  by  a  client  to  his  attorney,  not  for 
the  purpose  of  asking  his  legal  advice,  but  to  obtain  infor- 
mation concerning  a  matter  of  fact,  (as,  whether  he  could 
safely  attend  a  meeting  of  creditors,  depending  on  the  fact, 
whether  any  arrangements  had  been  made  to  prevent  his  ar- 
rest,) are  not  privileged.  "  A  question  for  legal  advice,"  said 
Lord  Tenterden,  "  may  come  within  the  description  of  a 
confidential  communication,  because  it  is  part  of  the  attorney's 
duty,  as  attorney,  to  give  legal  advice  ;  but  a  question  for  in- 
formation as  to  matter  of  fact,  regarding  a  communication 
which  the  attorney  has  made  to  others,  where  the  communi- 
cation might  have  been  made  by  any  other  person  as  well  as 
an  attorney,  and  when  the  character  and  office  of  an  attorney 
[  *189  ]  has  not  been  called  into  *action,  has  never  been  held  within 
the  protection,  and  is  not  within  the  principle  upon  which 
the  privilege  is  founded."  (1) 


Section  IV. 

TJie  Exclusion   of  Matters  of  Evidence,    the  disclosure   of 
which  would  be  prejudicial  to  Public  Interests. 

Principle  of  The  discovcry  of  truth,  in  inquiries  necessary  for  the  ad- 
exciusion.  jyiinistration  of  criminal  justice,  and  also  where  the  rights  of 
private  individuals  are  concerned,  is  an  object,  which,  howev- 
er desirable  in  itself,  may  nevertheless  be  counterbalanced  by 
mischiefs,  arising  from  disclosures  which  would  be  prejudicial 
to  public  interests.  Hence  the  danger  of  such  disclosures 
lias  been  deemed,  in  particular  instances,  an  adequate  ground 
for  the  rejection  of  evidence.  It  will,  however,  be  found, 
that  in  most  of  the  cases  where  testimony  has  been  rejected 
for  this  cause,  though  some  particular  facts  have  been  excluded 
from  the  view  of  the  jury,  a  sufficient  quantity  of  unimpeach- 

(2)    See   Gainford   v.    Grammar,    2  similar  circumstances,  the  attorney  has 

Campb.  10.     It  seems  to  have  been  con-  been  examined.       See  Ripon  w.  Davies, 

sidered    in   that   case,    that  although    a  2  N.  &  IM.  .310.       Griffith  v.  Davies,  5 

communication  between  the  defendant's  B.  &  Ad.  502.      Turner   v.   Railton,    2 

attorney  and  the  plaintiff  could  be  prov-  Esp.  474.     A  letter  written  by  an  attor- 

ed  by  a  third   person,   and    that   the  de-  ney  to  his  client,  and  produced  with  the 

Pendant's  authority  to  make  the  commu-  client's  signature  indorsed,    is   treated  as 

nication  would  be  presumed,  yet  that  the  the  letter  of  the  client,  Meyer  v.  Sefton, 

attorney    himself  could    not    prove    the  2  Str.  274. 

communication;  there  seems,    however,  (1)  Dramwick  ».  Lucas,   2    D.  &  C 

no  reason  for    excluding    the    attorney's  744. 
ovidence;  and  in  subsequent  cases  uacer 


Sect.  4.]  ill  Privileged  Communications.  1T5 

able  evidence  has  been  preserved  to  enable  them  to  arrive  at 
a  satisfactory  conclusion  upon  the  case. 

On    the   trial  of  Hardy  for  liiirli  treason,   a  man  Avho    had  Commum- 
been  employed  by  an  oliicer  of  the  executive  government,  to  spies. 
collect  information  at  a  meeting  of  one    of  the  corresponding 
societies,  was  not  allowed  to  disclose  the  name  of  his  employ- 
er, or  the  nature  of  the  connection  that  had  subsisted  between 
himself  and  the  officer.  (2) 

Another  witness,  in  the  course  of  the  same  trial,  had  made  ^J[j.'|!/''^ 
reports,  from  time  to  time,  of  the  proceedings  of  some  corres- 
ponding societies,  and  had  made  these  reports  by  the  advice 
of  a  third  person,  and  under  the  impression,  that  the  informa- 
tion *contained  in  the  reports  would  be  transmitted  to  another  [  *190  ] 
quarter  for  the  purpose  of  disclosure  ;  this  witness  was  asked, 
whether  he  had  communicated  his  reports  to  a  magistrate  of 
any  description  (1) ;  Lord  Chief  Justice  Eyre  considered  this 
a  proper  question  ;  the  witness,  on  answering  in  the  negative, 
was  then  asked  to  whom  he  had  made  the  communication.  This 
question  was  objected  to  ;  Lord  Chief  Justice  Eyre  upon  this 
said,  "It  is  perfectly  right,  that  all  opportunities  should  be 
given,  to  discuss  the  truth  of  the  evidence  given  against  a  pris- 
oner ;  but  there  is  a  rule,  which  has  universally  obtained,  on 
account  of  its  importance  to  the 'public  for  the  detection  of 
crimes,  that  those  persons,  who  are  the  channel  by  means  of 
which  tliat  detection  is  made,  should  not  be  unnecessarily  dis- 
closed. If  it  can  be  made  appear,  that  it  is  necessary  to  the 
investigation  of  the  truth  of  the  case,  that  the  name  of  the 
person  should  be  disclosed,  I  should  be  very  unwilling  to  stop 
it ;  but  it  does  not  appear  to  me,  that  it  is  within  the  ordinary 
course  to  do  it,  or  that  there  is  any  necessity  for  it  in  this  par- 
ticular case." 

The  cross-examination  of  the  same  witness  then  proceeded, 
and  the  witness  admitted,  that  he  had  related  what  he  knew 
to  a  friend,  who  advised  him  to  communicate  his  reports  of 
the  proceedings  to  another  person.  He  was  then  asked,  wheth- 
er that  friend  was  a  magistrate  ;  this  he  answered  in  the  neg- 
ative :  then  came  the  question,  who  was  the  friend  ?  This 
was  objected  to  (2) ;  and  the  objection  was,  that  the  person,  by 
whose  advice  the  information  was  given  to  a  person  standing 
in  the  situation  of  magistrate,  was  to  all  intents  and  purposes, 
the  informer,  and  that  his  name,  therefore,  could  not  be  disclos-  .  ' 
ed.  (3)     The  Judges  differed  in  opinion  upon  this  point ;  the 

(2)24    Howell's  St.   Tr.    HS^,    on  Report,  159.     See  also  Howell's  St.  Tr. 

cross-examinalion  of  Groves.    The  same  100. 

jirinciple  was  acted  upon  in  the  prosijcu-  (I)   24  ITowclPs  St.  Tr.  SOS  ;  on  ihc 

tion  of  Home  Tooke  for  high   treason  ;  cross-examination  of  Lynatn. 

in  the  prosecution  of  Walker  and  others  (2)   21  Howell's  St.  Tr.  p.  Hll. 

for  a  conspiracy;  and  in  the  prosecution  (o)  21  Howell's  St.  Tr.  p.  S14. 
of  Watson  for  high  treason.       (jurney's 


176  Exclusion  of  Matters  disclosed  [Ch.   11. 

Lord  Chief  Baron  Macdonald  and  Mr.  Justice  Bullcr  were  of 
opinion,  that  the  question  was  proper  :  but  the  majority  of  the 
Court,  consisting  of  the  Lord  Chief  Justice  Eyre,  Mr.  Baron 
Hotham,  and  Mr.  Justice  Grose,  were  of  the  opposite  opinion. 
Lord  Cliicf  Justice  Eyre  said,  "  Tliose  questions,  wliich  tend 

[  *19I  ]  to  the  discovery  *of  the  channels,  by  whom  the  disclosure  was 
made  to  the  officers  of  justice,  are  not  permitted  to  be  asked. 
Such  matters  cannot  be  disclosed,  upon  the  general  principle 
of  the  convenience  of  public  justice.  All  persons  in  that  sit- 
uation are  protected  from  discovery.  It  is  no  more  competent 
to  ask  who  the  person  was  that  advised  the  witness  to  make  the 
disclosure,  than  it  is  to  ask  to  whom  he  made  the  disclos- 
ure in  consequence  of  that  advice,  or  than  it  is  to  ask  any 
other  question  respecting  the  channel  of  information,  or 
what  was  done  under  it."  Mr.  Justice  Grose  considered  the 
adviser  of  the  witness  to  be  substantially  in  the  situation  of 
an  informer,  and  that  his  name,  therefore,  ought  not  to  be  re- 
vealed. Mr.  Baron  Hotham  also  considered  the  person  to  be 
an  informer ;  the  witness,  he  said,  had  made  the  communi- 
cation to  his  friend,  under  an  impression  and  full  persuasion, 
that  through  him  the  intelligence  might  be  conveyed  to  a 
magistrate  ;  and  there  was  no  distinction,  he  added,  between 
making  a  disclosure  to  the  magistrate  himself,  or  making  it 
to  another  person,  who  was  to  communicate  it  to  the  magis- 
trate. The  Judges,  who  were  of  opinion  that  the  question 
might  properly  be  asked,  admitted  the  general  rule,  and  differ- 
ed only  in  the  application  of  that  rule  to  the  particular  facts 
of  the  case.  The  Lord  Chief  Baron  said,  if  he  were  satisfied 
that  the  friend  to  whom  the  witness  disclosed  this  matter  was 
in  any  way  a  link  in  the  communication,  he  should  certainly 
agree  that  the  rule  applied  to  him  ;  but  this  person  not  being 
connected  either  with  the  magistracy,  or  the  executive  gov- 
ernment, the  case  did  not  appear  to  him  to  fall  within  the  rule. 
Mr.  Justice  Buller  admitted  the  rule  with  respect  to  the  in- 
former to  the  utmost  extent :  "if  the  name  of  the  informer," 
he  said,  "  were  to  be  disclosed,  no  man  would  make  a  discov- 
ery, and  public  justice  would  be  defeated."  He  admitted, 
also,  that  if  a  middle  man  is  made  the  channel  of  communi- 
cation, he  ought  to  receive  the  same  protection  as  the  first 
person  to  whom  it  was  mentioned.  But  he  differed  in  opin- 
ion only  as  to  the  situation  of  the  friend  respecting  which 
this  question  arose  ;  in  his  view  of  the  evidence,  he  consider- 
ed that  the  witness  had  communicated  the  information  to 
another  man,  not  for  the  purpose  of  prevailing  on  him  to  make 

[  *192  ]  the  disclosure  to  a  ^magistrate,  but  merely  to  consult  him  for 
the  purpose  of  making  up  his  own  mind,  whether  he  should 
himself  make  the  discovery ;  he  was,  therefore,  of  opinion 
that  tlie  witness  ought  to  be  allowed  to  answer  the  ques- 
tion." 


Sect.  4,]  in  Privileged  Com/iminications.  177 

Hence  it  appears,  that  a  witness  who  has  been  employed 
to  collect  information  for  the  use  of  government,  or  for  the 
purposes  of  the  police,  will  not  be  permitted  to  disclose  the 
name  of  the  employer,  or  the  nature  of  the  connection  be- 
tween that  em})loyer  and  himself,  or  the  name  of  any  person 
to  whom  he  may  have  conveyed  the  information  lor  the  pur- 
pose of  being  transmitted.  And  as  it  would  not  be  proper  to 
inquire  to  what  oflicer  of  government  the  information  had 
been  given,  so  neither  can  it  be  asked,  whether  the  informa- 
tion has  been  made  by  that  officer  to  the  government.  But 
it  seems  proper  to  ask  a  witness,  who  is  a  spy  or  informer, 
whether  his  commimications  liave  been  made  to  a  magis- 
trate. (1) 

Upon  the  trial  of  Watson  for  high   treason,    a  clerk  of  the  officer  of 

.  ( lovern* 

works  in  the  Ordnance  department,  who  had  resided  many  mem. 
years  in  the  Tower  of  London,  was  called,  on  the  part  of  the 
prosecution,  to  prove  that  a  plan  produced  was  part  of  the  in- 
terior of  the  Tower.  He  was  afterwards  asked  upon  cross- 
examination,  whether  another  printed  plan,  which  was  shewn 
to  him,  was  a  correct  plan  of  the  Tower,  for  the  purpose  of 
proving  that  such  maps  might  be  purchased  without  difficulty 
in  the  shops  of  London.  But  the  Court  held,  that  the  evi- 
dence could  not  be  received,  on  the  ground  tiiat  it  would  be 
attended  with  public  mischief  to  allow  an  officer  of  the  Tow- 
er to  be  examined  as  to  the  accuracy  of  such  a  plan.  (2) 

On  a  like  principle  of  public  policy,  official  communications  o^fia' 
between  the  governor  and   law-officer  of  a   colony  respecting  cations. 
*the  state  of  the  colony  ;  (1)  orders  given  by  the  governor  of  [  *193  J 
a  colony  to  a  military  officer  ;   (2)  a  correspondence  between 
an  agent  of  government  and   a  secretary  of  state  ;  (3)  the  re- 
port of  a  military  court  of  inquiry  respecting  an  officer  whose 
conduct  the  Court  had  been    appointed    to  examine  ;  (4)    the 
official  correspondence  between   the  commissioners  and  an  of- 
ficer of  the  customs ;  (5)  a  letter  from  a  secretary  of  state  to 
a  person  acting  under  his  authority  ;  (6)  all  these  are  confiden- 
tial and  privileged  communications,   which  courts  of  justice 
will  not  allow  to  be  disclosed.  (7) 

(1)  Vide   cases   supra,    and    R.     r.         (.3)  Anderson  v.  Sir  W.  Ilamiltcvn,  2 
Watson,  2  Sir.    136,    where    a    witness     Br.  &  B.  1.56,  n. 

w;is  not  permitted  to  say  whether  he  de-  (4)   Ilorne  w.  Lord  T.  Bentick,   2  lir, 

livered  a  short-hand  note    to  liie   under-  &  15.  130.     See  q.  t.  v.  Birreil,3  Camp. 

secretary  of  state.      R.    v.    Stone,    cited  33.5. 

by  liord  I'.lienboritugh,  in  I{.  i'.  \Vais()n,  (5)   Blacic  v.  Ilolines,  Fox  &  Sniitii's 

2  Str.  136.       32  iloweil'.s  Str.  Tr.  101.  Rep.  28,  K.  B.  in  Ireland. 

Another   example   may   he   seen  in    De  (6)  Case    ciied    2    Str.    1S5.     As  to 

Berenger's  case,  p.  344  of  Curney's  Ue-  minutes  taken   before  llie  Privy  (council, 

jjort.  see  Layer's  case,  6  T.  R.  2S1. 

(2)  R.  D.  Watson,  2  Str.  148.  (7)   When  such  communications   are 

(1)  Wyalt    V.  Core,  lloJt's  N.  P.  C.     in  writing,  the  ellect  of  rejecliiii^  the  doc- 
299.  umont  is  to  let  in  secondary  evidence,  \i\ 

(2)  Cooke  V.  Maxwell,  2  Str.  183.         like  manner  as  to   title  deeds  withheld. 

Co 


178 


Exclusion  of  Matters  disclosed  [Ch.   11. 


Member 
of  Parlia- 
inent. 


Grand  jury- 
man. 

[  *194  ] 

Witness 
before 
grand  jury. 


In  the  case  of  Pliinket  v.  Cohbett,  (8)  (which  was  an  ac- 
tion against  the  defendant  for  puhUshing  a  libel  reflecting  on 
the  condnct  of  the  plaintifl",  as  a  member  of  the  Commons' 
House  of  ParUament  in  Ireland,)  the  council  for  the  delendant 
inquired  of  one  of  the  witnesses,  the  Speaker  of  the  House 
of  Commons,  in  cross-examination,  as  to  the  expressions  and 
arguments,  which  the  plaintiif  had  used  in  Pai-hamcnt  on 
a  particular  subject,  when  Lord  Ellenborough  interposed, 
and  stopped  the  examination,  observing,  that  it  would  be  a 
breach  of  duty  in  the  witness,  as  a  member  of  the  Irish  Par- 
liament, and  a  breach  of  his  oath,  to  reveal  the  councils  of 
the  nation,  (a) 

It  does  not  appear  to  be  completely  settled,  whether  a 
grand  *jury-man  is  at  liberty  to  disclose  the  evidence  laid  be- 
fore the  grand-jury  in  the  course  of  a  criminal  proce(3ding. 
In  an  action  on  the  case,  for  maliciously  indicting  the 
plaintiif,  Lord  Kenyon  is  reported  to  have  allowed  tlie 
counsel  for  the  plaintifl?,  to  inquire  of  a  grand  jury-man, 
whether  the  defendant  was  prosecutor  of  the  indictment  ;  be- 
ing of  opinion,  that  this  inquiry  did  not  infringe  upon  the  of- 
ficial oath  taken  by  the  witness.  (1)  (i) 


This  point  belongs  more  particularly  to 
the  subject  of  secondary  evidence. 

(8)  29  Howeirs  St.  Tr.  71,  72.  See 
Plunket  V.  Cobbett,  5  Esp.  137,  from 
which  it  would  appear  that  the  witness 
might  be  asked  wliether  a  particular  per- 
son took  part  in  the  debates  ;  a  doctrine 
which  is  somewliat  questionable.  And 
from  this  report,  the  disclosure  of  what 
the  member  said,  appears  to  have  been 
left  optional  with  the  witness.  Except 
in  cases  where  strangers  are  excluded, 
there  does  not  seem  to  be  much   weight 


in  the  ground  stated  by  Lord  Ellenbor- 
ough. If  the  disclosure  is  optional,  the 
privilege  must  be  regarded  as  that  of  the 
witness,  and  the  case  would  then  resem- 
ble those  of  counsel  and  arbitratois  be- 
fore mentioned. 

(1)  Sykes  v.  Dunbar,  2  Selw.  N.  P, 
MSS.  The  only  part  of  the  oath  whicb 
can  be  supposed  to  be  a  bar  to  dis- 
closure is  the  following  :  "  the  Iiing'& 
counsel,  your  fellows',  and  your  own, 
you  shall  keep  secret." 


(a)  See  the  case  of  Coffin  v.  Coffin,  4  Mass.  R.  1,  where  tho  subject  was  mucb 
considered.  The  court  give  to  the  representative  liis  privilege  while  in  his  place  in- 
the  house,  and  in  every  other  place  while  in  the  exercise  of  the  functions  of  h\s 
office;  whether  the  same  be  in  committee,  or  in  a  convention  of  both  houses.  Bui 
any  language  or  conduct  of  a  representative  is  not  to  be  considered  as  official,  merely 
because  he  chooses  the  representative's  chamber  for  the  scene.  The  defendant, 
therefore,  was  considered  liable  for  defamatory  words  spoken  maliciously,  and  not 
in  discharging  the  functions  of  his  office. 

(&)  It  is  not  allowed  that  they  should  disclose  who  agreed  to  find  the  bill,  and 
who  did  not  agree.  And  they  are  not  permitted  to  give  information  of  presentments 
made,  before  the  culprit  is  arrested.  But  the  oath  of  the  grand  juior,  and  the  poli- 
cy of  the  law,  was  never  intended  to  obstruct  the  course  of  justice.  Per  Huston, 
J.,  3  Walts,  R.  56.  The  court  there  admitted  the  depositions  of  the  foreman  and 
some  of  the  grand  jurors  to  prove  who  was  the  prosecutor  in  a  certain  indictment 
returned  "  ignoramus";  but  they  rejected  such  parts  as  stated  the  opinion  of  the 
witnesses.  Huston,  J.,  observed: — "That  part  of  the  grand  juror's  oath,  "the 
commonwealth's  counsel,  your  fellows,  and  your  own,  you  shall  keep  secret,"  has 
been  the  subject  of  much  observation,  and  some  misconstruction.  It  was  framed 
in  another  country,  and  during  a  state  of  society  difierent  from  that  in  which  we 
live.  A  powerful  and  disorderly  baron  once  came  with  his  armed  followers  and 
took  the  judges  of  the  bench  iu  York,  and  kept  them  prisoners  in  his  castle  some 


Sect.  3.]  in  Professional  Confidence.  179 

On  the  trial  of  Watson  for  hish  treason,  a  witness  was 
questioned  by  the  counsel  for  the  prisoner  as  to  his  having 
produced  and  read  a  certain  writing  before  the  grand-jury  : 
this  being  objected  to  by  the  solicitor-general,  Lord  EUenbor- 
ough,  C.  J.,  said  "  he  had  considerable  doubt  upon  the  subject : 
he  remembered  a  case,  in  which  a  witness  was  questioned  as 
to  what  passed  before  the  grand  jury,  and,  though  it  was  a 
matter  of  considerable  importance,  he  was  permitted  to  an- 
swer." The  Solicitor-general  then  intimating,  that  if  such  a 
case  had  not  .occurred,  he  should  have  thought  that  what  pas- 
sed before  the  grand  jury  could  not  properly  be  inquired  into, 
as  they  are  sworn  to  secrecy."  Lord  Ellenborough  added, 
that  "  he  had  doubts,  and  that  many  very  eminent  men  at  the 
bar  had  entertained  doubts  upon  the  point ;  but  that  he  re- 
membered the  case  perfectly."  (2)  Here  the  matter  seems 
to  have  dropped ;  and  the  question,  as  originally  put,  was  not 
repeated. 

But  communications,    though  made  to  official  persons,  are  I'f'vate  . 
not  privileged,  where  they  are  not  made  in   the  discharge  of  canons  to 
any  public   duty.      Thus,  a  letter  written  by  a  private  indi-  °^j^'^'  P^""" 
vidual  to  the  Secretary  of  the  Postmaster-General,  complain- 
ing of  the  conduct  of  the  guard  of  a  mail,  has  been  held  not 
to  be  within  the  principle  of  the  rule  justifying  the  exclusion 
of  evidence.  (3) 

*When  the  purposes  of  public  justice  require  that  certain  [  *195  ] 
evidence  should  be  given,  which  the  Court  from  regard  to  de- 
cency would  be  disposed  to  suppress,  (whether  upon  indict- 
ments for  crimes,  or  on  questions  of  private  rights  or  private 
wrongs,)  the  evidence,  however  inconvenient,  must  be  dis- 
closed. It  has  therefore  been  considered,  that  Mr.  Justice 
Burnet  was  wrong  in  refusing  to  try.  an  action  of  defamation, 
in  which  a  woman  charged  a  man  with  proclaiming  to  the 
world  that  she  had  a  secret  defect  in  her  person,  and  the  de- 

(2)  32  Howell's  St.  Tr.  107.  And  of  the  clerk  of  the  grand  jury  was  re- 
see  the  discussion   in  Sir  J.  Fenwick's  jected. 

case,  5  Harg.  St.  Tr.  72.  In  a  case  ci-  (3;  Blake  v.  Pilfield,  1  M.  &  Ro.  198. 
ted  12  Vin.  Ab.  Ev.  Ba.  5,  the  evidence 

weeks.  In  such  times  it  might  have  heen  dangerous  to  a  witness  to  have  it  known 
lliat  he  gave  evidence  before  a  grand  jury  against  such  a  chieftain." 

It  is  the  policy  of  the  law,  that  the  preliminary  inquiry,  as  to  the  guilt  or  inno- 
cence of  a  party,  against  whom  a  complaint  is  preferred,  should  be  secretly  conduct- 
ed; the  county  attorney,  therefore,  cannot  be  examined  on  oath  in  regard  to  what 
took  place  before  him.     M'Lellan  v.  Richardson,  13  Maine,  82. 

The  Jurors  on  trials  when  called  on  in  respect  to  their  verdict,  are  bound  lo  make 
true  answers  in  court  touching  their  verdict  in  the  same  manner  as  i(  they  had  been 
sworn  for  that  purpose.     .5  Pick.  2i)0. 

.Jurors  may  testify  in  exculpation  of  the  jurors,  and  in  support  of  their  verdict,  4 
J.  R.  4S7.  I5ut  not  to  impeach  a  verdict,  id.  7  S.  C  R.  458.  Nor  can  their  tes- 
timony he  admitted  to  prove  misconduct  in  their  fellows.  5  Conn.  IMS.  See  3 
Greenl.  339.  See  also  4  Bmn.  150;  3  S.  &  R.  458;  4  J.  R.  487;  3  (ireenl.  204; 
1 4  Mass.  248. 


cess. 


ISO  Exclusion  of  Matters  disclosed,  tV^.       fCh.   11. 

feiidant  by  pica  justified,  that  it    was  true  she  had  such  de- 
fect. (1) 
Non-ac-  jt  was  said  by  Lord  Mansfield,  in  Goodrig/it  v.  Moss,   (2) 

that  it  is  a  rule  foimdcd  in  decency,  morality,  and  policy,  that 
a  husband  or  wife  shall  not  be  permitted  to  say,  after  mar- 
riage, that  they  have  had  no  connection,  and  therefore,  that 
the  oflspring  is  spurious  ;  more  especially  the  mother,  who  is 
the  offending  party  and  that  the  point  had  been  solemnly 
decided  at  the  Delegates. 


[  *19G  ]  *CHAPTER  XII. 

GENERAL     RULES     RELATING    TO     THE    EXCLUSION    OF  EVIDENCE. 
HEARSAY  EVIDENCE. 

Having  investigated  several  rules  for  the  exclusion  of  evi- 
dence, as  regarding  the  peculiar  character  or  situation  of  a 
witness,  or  the  peculiar  subject  of  his  testimony,  we  proceed 
to  consider  some  rules  of  a  more  general  nature  which  have 
been  established,  principally  with  a  view  to  provide  against 
the  danger  of  juries  being  perplexed  or  misled  by  evidence, 
of  doubtful  credibility  even  where  the  witnesses  are  unim- 
peached. 

It  is  proposed  to  treat  of  the  rules  adopted  by  our  Courts, 
for  the  exclusion  of  hearsay  evidence,  and  of  secondary  evi- 
dence. 

In  treating  of  hearsay  evidence,  it  is  proposed,  in  the  first 
section  of  the  present  chapter,  to  consider  the  distinction  be- 
tween original  and  hearsay  evidence  ;  and,  in  the  second  sec- 
tion, to  treat  of  the  rule  which  excludes  hearsay  evidence. 
Exceptions  to  this  rule  ^xill  be  considered  in  separate  chap- 
ters. 

Section  I. 

Original  and  Hearsay  Evidence. 

When  a  witness,  in  the  course  of  stating  what  has  come 
mider  the  cognizance  of  his  own  senses,  relative  to  a  matter 

(1)  Per  Lord  IMansfield  in  Da  Costa  band's  death,  to  prove  the  child  a  bas- 
V.  Jones,  Tovvper,  733.  But  the  Courts  tard,  which  is  inconsistent  with  the  prin- 
have  frequently  refused  to  try  wagers,  on  ciple  adopted  by  Lord  Mansfield.  Lord 
the  ground  of  iheir  leading  to  admission  Hardwicke,  Rep.  temp.  Hard.  83,  puts 
of  indecent  evidence,  or  as  unnecessarily  the  incompetency  of  the  wife  to  give  evi- 
injuring  the  feelings  of  third  parties.  lb.  dence  of  non-access  upon  the  ground  of 
Ditchburn  v.  (ioldsmith,  4  Camb.  152.  interest;  a  ground  which  would  only  ap- 

(2)  Cpwper,  .'}f)4.  See  Cope  v.  Cope,  ply  in  particular  instances,  as  in  orders 
1  M.  &  Ho.  274.  Li  11  N.  p  113,  a  of  llliation.  It  does  not  appear  clearly, 
case  is  referred  to,  as  shewing  that  the  how  the  circnmstance  of  tJie  wife  being 
wife  might  l»e  examined  after  Iier  hus-  the  offending  party  can  affect  the  question. 


Sect,  l.j  Original  and  Hearsay  Evidciicc.  181 

ill  dispute  states  the  language  of  others  whicli  he  has  heard, 
or  produces  papers,  which  he  identifies  as  being  written  by 
^particular  individuals,  he  oflers  what  is  called  liearsay  evi-  [  *107  ] 
dence.  This  evidence  may  sometimes  be  the  very  matter  in 
dispute,  or  something  from  which  a  pertinent  inference,  rela- 
tive to  the  matter  in  dispute,  may  be  drawn  ;  or,  on  the  other 
hand,  it  may  consist  of  a  verbal  or  written  narrative  of  facts 
received  by  the  witness  from  some  other  person,  which  he  de- 
livers at  second  hand,  to  the  Court.  The  term,  hearsay  evi- 
dence, is  used  with  reference  both  to  that  which  is  written, 
and  to  that  which  is  spoken.  But,  in  its  legal  sense,  it  is 
confined  to  that  kind  of  evidence,  which  does  not  derive  its 
efiect  solely  from  the  credit  to  be  attached  to  the  witness  him- 
self, but  rests  also  in  part  on  the  veracity  and  competency  of 
some  other  person,  from  whom  the  witness  may  have  received 
his  information. 

In  some  cases,  the  words  or    writings   offered  in   evidence  t[o""bT' 
are,  in  fact,  transactions,    concerning  which  the  only  inquiry  word  oV 
instituted  is,  whether  they  have  taken  place  or  not.      For  ex-  ^^"'"'"S- 
ample,    letters  written  to  a  bankrupt  before    his    bankruptcy, 
containing  matters  material   to  an  act  of  bankruptcy,  are  ad- 
missible, without  calling  the   writer    of  them,   as    evidence 
against  the  bankrupt,  that  he  received  intimation  of  certain 
facts  ;    but  not  to  prove,  that  the  facts  were  true.  (1)     So  let- 
ters written  to  a  person  a  short  time  previous  to  his  liankrupt- 
cy,  and  containing  a  refusal  to  advance  money,  are  evidence 
of  the  fact  of  such  refusal.  (2) 

In  like  manner,  in  an  action  for  a  malicious  prosecution,  a 
letter  and  an  affidavit  were  received  in  evidence,  not  as  prov- 
ing the  facts  therein  stated,  but  as  proving  some  collateral 
fact,  to  be  inferred  from  them  ;  the  first  as  showing  how  the 
*plaintiff  came  to  be  bailed  ;  the  latter,  as  showing  a  step  ta-  [  *198  J 
ken  by  the  persons  conducting  the  prosecution,  {a)     The  ev- 

(1)  Cotton  V.  James,  1  M.  &  M.  273.  an  established  rule,  lliat  letters,  which 
The  lime  of  receiving  information  being  are  admis.sil)le  for  one  purpose,  will  not 
important,  this  was  proved  by  the  post-  be  rejected,  merely  because  they  con- 
mark,  tain    hearsay    evidence    of  the    truth    of 

(2)  V^acheru.  Cocks,  1  M.  &  M.  353.  facts  ;  but  the  jury  will  be  directed  in 
Lord  Tcnterden  suffered  only  that  part  the  proper  use  of  them  ;<s  instruments  of 
of  the  letter  to  be  read,  which  contained  evidence.  Willis  v.  Bernard,  8  IJing. 
the  refusal.  In  I'airlie  v.  Denton,  2  C.  37(j,  and  cases  ib.  For  other  instances 
&  1*.  103,  the  part  of  a  plaintiff's  unan-  of  letters,  see  Whitaker  v.  Hank  of 
svvered  letter,  which  contained  a  demand  England,  6  C.  &  P.  700.  Whitehead 
was  allowed  to  be  read.     It  is,  however,  v.  iScott,  1  M.  &.  Ro.  2. 


ia)  To  entitle  the  plaintiff  to  a  verdict,  ho  must  prove,  tliat  the  indictment  was 
found  upon  the  complaint  of  the  defendant,  and  by  bis  agency  and  procurement. 
The  evidence  before  Ibe  grand  jury,  upon  which  the  indictment  is  found,  nmst  bo 
disclosed,  and  it  will  be  open  to  the  defendant  to  show,  that  the  charges  preferred 
by  him,  or  which  he  adduced  to  establish  before  the  jury,  were  true;  or,  that  he 
had  probable  cause  for  believing  them  to  be  true.     And   be   will,   upon  that  trial, 


Letters  to 
leslalor. 


1S2  Hearsay  Evidence.  [Chap.  12. 

ideiicG,  as  Lord  Tentcrdeii  observed,  was  admissible  for  one 
purpose,  but  not  for  another.  (1)  In  an  action  for  a  libel, 
evidence,  that  the  publisher  of  the  libel  followed  it  up  by  a 
charge,  the  particulars  of  which  corresponded  with  the  impu- 
tation in  the  libel,  is  admissible  on  the  part  of  the  defendant, 
though  obviously  the  proof  of  the  particulars  of  the  charge 
tends  m  no  degree  to  establish  their  truth.  (2) 

It  has  been  doubted,  whether,  upon  a  question  of  the  san- 
ity of  a  devisor,  letters  found  among  his  papers  shortly  after 
his  death,  written  to  him  by  persons  of  his  acquaintance,  are 
admissible  for  the  purpose,  showing  that  the  devisor  was  trea- 
ted by  them  as  a  person  of  sound  mind.  (3)  {a) 

(1)  Taylor  ».  Williams,  2  B.  &  Ad.  Error,  1  Ad.  Sc  Ell.  3.  One  of  the  let- 
845.  In  Penn  v.  Scholey,  5  Esp.  243,  tors  purported  to  be  an  answer.  All  the 
an  affidavit  made  by  a  stranger,  was  writers,  except  one,  were  dead.  Simi- 
read  in  evidence.  lar  evidence  appears   to    have  been   re- 

(2)  Fiaden  v.  Westlake,  1  M.  &  M.  ceived  in  the  Ecclesiastical  Courts.  lb. 
661.  p.   8.      Batsford  v  Alderson,   3  Hagg. 

(3)  Wright  ».    Doed.   Tatham,    in  609. 

have  the  full  benefit  of  his  objections,  to  answer  for  charges  introduced  into  the  in- 
dictment, on  evidence  to  which  he  was  not  accessary.  h\  this  form  of  proceeding, 
the  whole  matter  will  come  before  the  jury,  and  the  ulterior  questions  of  law  to 
arise  upon  it,  will,  on  the  request  of  the  parties,  be  reserved  for  the  consideration 
of  the  court.  Per  Jones,  C.  J.,  in  2  Hall,  343.  In  this  case,  the  plainlitf  not  on- 
ly produced  and  read  in  evidence  an  exemplification  of  the  record  of  indictment 
against  him,  and  of  his  acquittal;  but  he  also  introduced  one  of  the  grand  Jurors  to 
show  who  the  prosecutor  was  before  the  grand  jury  ;  and  also  the  attorney  for  the 
government  and  the  counsel  for  the  defendant. 

Proof  in  ex  parte  applications  for  proces.i.  According  to  the  present  prac- 
tice, the  athdavit  to  obtain  the  writ  ne  exeat  must  be  positive  as  to  the  defendant's 
intention  to  go  abroad,  or  to  his  threats  or  declarations  to  that  effect,  or  to  facts 
evincing  it.  7  Ves.  410,  417;  S  id.  597;  Hid.  54;  16  id.  470.  In  ex  parte 
Fitch,  2  Wend.  298,  held  that  an  affidavit  of  belief  by  two  witnesses  that  the  debt- 
or resided  out  of  the  state  was  sufficient  to  warrant  an  atiachment  under  the  non- 
resident debtor  act  as  it  then  stood.  But  this  was  under  the  statute  requiring 
"  proof  to  the  satisfaction  of  the  judge."  In  the  late  case  of  Ex-parte  Haynes,  IS 
Wend.  611,  which  was  a  proceeding  under  the  statute  against  absconding,  con- 
cealed and  7ion-resident  debtors, — where  the  creditor's  application  was  supported 
by  the  affidavit  of  two  disinterested  persons  who  swore  that  they  were  informed 
and  fteZteuet/ that  the  defendant  resided  out  of  the  State  ;  Held,  that  this  was  not 
sutiicient.  The  Court,  Cowen  J.  say  : — On  such  a  Statute,  (alluding  to  the  former 
Statute)  with  the  high  authorities  to  which  I  have  referred  before  me,  I  think  I 
should  not  hesitate  in  receiving  the  oath  of  mere  belief  ;  but  that  Statute  no  lon- 
ger remains  to  us.  Dissatisfied  it  seems,  with  its  construction  in  the  case  of  ex 
parte  Fitch,  the  legislature  have  demanded  that  "  the  facts  and  circumstances  to 
establish  the  grounds  "  of  the  application  should  be  proved  by  two  witnesses,  2  U. 
S.  3,  S.  5.  The  same  learned  Judge  (the  late  Ch,  J.  Savage)  who  delivered  the 
opinion  of  this  Court  in  the  matter  of  Fitch,  has  recently  taken  a  leading  part  in 
construing  another  Statute,  which  requires  facts  and  circumstances  to  warrant  an 
attachment  by  a  justice  of  the  Peace,  statutes  session  of  1831,  p.  404,  s.  34,  35. 
The  affidavit  was  &e/if/ merely  that  the  debtor  was  about  to  remove  fraudulently, 
&c.  The  Court  held  the  affidavit  insufficient."  Smith  d.  Lane,  I  4  Wend.  237. 
In  a  similar  case,  ??iere  6e/je/ was  held  insufiicient  to  confer  jurisdiction.  Loder 
V.  Phelps,  13  id.  46. 

(a)  Sanity  of  a  devisor — Evidence  in  regard  to  the  sanity  of  a  testator  at  a 
particular  time,  is  admissible  in  respect  to  it  immediately  before  or  after  that  time  ; 
but  evidence  of  insanity  long  after  is  not  admissible.  9  Mass.  225  ;  4  id.  593.  The 
flubscrjbing  witnesses  to  the  will  are  made  judges  of  the  capacity  of  the  testator  ; 


( 


Sect.   1.]  Original  and  Hearsay  Evidence.  183 

Proof  of  a  false   denial  of  a  person,  by  a  wife  or  servant,  ^^''^^  ''''"'• 
the  person  being  at  home  at  the    time,  is  original    evidence. 
Nothing  conld  be   added  to  the  credibility  of  the  fact  of  the 
denial,  by  calling  the    person  who  made   it,    even   supposing 
that  the   witness  were  perfectly  disinterested  ;  and   although 
the  jury  may  draw  an  inference  from  the  fact  of  the    denial, 
yet  they  are  not  required  to  attach  credit  to  the  statement  of 
any  person  not  before  them.  (4)      And,  clearly,  all  verbal  in-  t>ifections. 
structions,  as  of  a  bankrupt  ordering  himself  to  be  denied  to 
creditors,  are  in  their  nature  original  evidence.  (5)    The  same 
is  to  be  said  *of  communications  of  various  kinds,  where  the  [  *199  ] 
object  of  giving  them  in  evidence  is  not  that  their  truth  may 
be  inferred  solely  from  the  fact  of  the  communication  having 
been  made,  and  from  the  credit  of  the  person  making  it.  ( 1 ) 

In  many  cases,  the  expressions  of  persons  are  the  very  mat-  Subject  of 

•'  ^     .  \  ^        .  .  ^,  expres- 

ter  ni  issue  :    as  where  the  controversy  is  respecting  the  ques-  »ions  iu 
tion,  whether  they  have  been  used  or  not.      The  proof,  there-  i^^"^- 
fore,  of  their  having  been   used,    is  in  its  nature  original  evi- 
dence.    Thus,  upon  an  inquirv  respecting  reputed  ownership  R^cpu'e^' 

1         1         1        T  1  ,  ■  -,  f    1  •     ■  L-  ownership. 

under  the  bankrupt  laws,  hearsay  evidence  ot  the  opinion  oi 
neighbours  is  admissible,  either  to  prove  or  disprove  the  reputed 
ownership  of  the  bankrupt.  In  one  case,  Gibbs,  C.  J.,  ob- 
serves, "  What  is  reputed  ownership?  it  is  made  up  of  the 
opinions  of  a  man's  neighbors  ;  it  is  a  number  of  voices  con- 
curring upon  one  or  other  of  two  facts.  (2)"     The  existence 

(4)  Attorney  General  v.  Good,  v.  Boucher,  10  Barn.  &  Cress.  710. 
M'Clel.  &  Y.  286;  information  for  cus-  Vincent  v.  Prater,  4  Taunt.  (i03,  where 
lom-house  penalties.  The  husband  was  the  direction  «liewcd  tliat  tiiere  was  no 
denied  by  the  wife,  immediately  after  intention  to  delay  creditors, 
uncustomed  goods  were  discovered  on  (1)  Shott  d.  Streathfield  and  Another, 
the  husband's  premises.  In  Key,  as-  2  M.  &  IM.  9.  In  this  case  A.  went  out 
signee  of  Sherwin  v.  Shaw,  8  Bing.  of  partnership,  and  introduced  B.  (a  de- 
320.  Upon  a  creditor  calling,  the  bank-  fendant)  to  the  witness  as  his  successor; 
rupt  was  seen  peeping  over  his  wife's  the  witness  was  asked  whether,  (in  liie 
shoulder  in  a  retired  part  of  the  shop,  absence  of  the  defendants)  he  reported 
and  immediately  afterwards  she  came  in-  this  conversation  to  the  plaintiffs.  In 
to  the  front  part,  and  said,  "  My  hus-  Whitehead  v.  Scott,  2  M.  &  M.  2,  it 
band  is  not  at  home."  See  also  Char-  was  held  that  a  party  to  a  suit  has  a 
ington  V.  Brown,  1  B.  Moore,  341  ;  right  to  have  a  letter  read  making  a  do- 
the  answer  of  a  wife  to  a  creditor.  mand,  though   the  counsel  for  the    other 

(5)  .lameson  v.    Earner,   1  Esp.    281.  party  otVers  to  admit  the  demand. 

Gillingham  V.  Laing,  6  Taunt,  532;  di-         (2)   Grove  d.  Rutlen,  Holt's  N.  P.  C.  ' 

reclions  by  a  bankrupt  to  a  friend,  to  say  327.  Oliver  v.  Bartlet,  1  Br.  &  B.  269. 
that  he  was  not  upon  exchange.     Fisher     2  B.  Moore,  592,  S.  C,  in  which   case 

and  they  maybe  enquired  of  generally  as  to  the  judgment  they  formed  of  the 
Boundness  of  the  testator's  mind  at  the  time  of  exccutitig  the  will  ;  but  other  wit- 
nesses may  not  testily  merely  their  opinion  or  judgment.  3  id.  330,  336.  The 
presumption  is  in  favor  of  the  sanity  of  the  testator  ;  hut  after  a  mental  alienation 
has  been  proved  the  devisee  must  show  a  lucid  interval,  or  the  sanity  of  the  testator 
when  he  executed  the  will.  See  2  .J.  \i.  31  ;  Ty  id.  144.  The  (|uestion  in  regard 
to  the  capacity  of  the  testator  relates  exclusively  to  the  time  when  the  will  was 
made  ;and  though  evidence  before  and  after  is  admitted,  it  is  received  only  to  show 
his  state  of  mind  at  that  time.  Kinnc  u.  Kinuc,  9  Conn.  It.  86.  (See  further  jtost 
p.  200,  note,  and  see  7  S.  £i  R.  85.) 


184 


Hearsay   Evidence. 


[Ch.   12. 


Uumor. 
Cliaracter. 

[  *2U0  ] 

General 


Intention 
of   tesialor. 


Expres- 
sions ac- 
coiiipany- 
in>f  mental 
feelings. 


of  .1  public  rumour  has  been  allowed  to  be  proved  in  the  same 
way  (3).  Aud  tills  is  the  nature  of  the  evidence  respcctiug 
general  character,  which,  it  will  be  seen  in  the  course  of  this 
work,  is  relevant  to  various  inquiries.  (4) 

*ln  like  manner,  in  an  action  for  destroying  a  picture, 
where  the  subject  of  inquiry  was  as  to  the  impression  produ- 
ced by  the  picture  on  the  minds  of  the  public,  the  declarations 
of  spectators  in  looking  at  it  were  admitted  in  evidtjiice  ;  (1) 
what  was  said  by  the  spectators  was  the  effect  produced  by 
the  picture ;  it  was  not  received  as  evidence  of  the  painter's 
design,  upon  credit  given  to  assertions  of  persons  not  before 
the  Court.  The  declarations  of  a  testator  have  been  held  to 
be  receivable  in  evidence,  to  show  his  intentions,  when  his 
will  is  inqjugned  on  the  grounds  of  either  fraud,  circumven- 
tion, or  forgery,  (2)  or  to  shew  the  state  of  his  mind.  (3)  («) 

In  cases  where  it  is  material  to  inquire  into  the  demeanor, 
the  conduct,  and  mental  feelings  of  an  individual  at  a  partic- 
ular period,  the  expressions  used  by  the  individual  at  the  peri- 


tlie  court  sail]  that  they  did  not  decide 
whether  reputation  alone  without  facts, 
would  sulfice.  And  see  the  cases  as  to 
notoriety  of  transfer  upon  assignnienis  of 
property.  Muller  v.  ftJ(7ss,  1  ftl.  &  S. 
o35. 

(3)  Jones  v.  Perry,  2  Esp.  4S2;  ac- 
tion for  keeping  a  malicious  dog,  l)y 
which  the  plaintifPs  child  was  hilten. 
liOrd  Kenyoii  allowed  a  vvitness  to  be 
iidked  respecting  a  report  in  the  neigh- 
bourhood, that  the  dog  had  been  bitten 
by  another  dog. 

(4)  See  infra,  respecting  relevancy 
of  proofs.  Foulkcs  v.  Gellway,  3  Esp. 
23(j,  is  a  strong  example  of  this  kind  of 
evidence.  It  was  an  action  for  breach 
of  promise  of  mariiagc,  where  the  de- 
fence was,  that  the  plaintitf  was  a  wo- 
man of  bad  character;  and  a  witness, 
who  had  gone  to  the  jjlace  where  tiie 
plaintilF lived,  was  allowed  to  give  evi- 
dence of  what   he  there    iieard.       Lord 


Holt,  npon  an  information,  against  a  de- 
fendant for  being  a  cheat  and  itnposter, 
allowed  declarations  of  persons  as  to 
having  been  deceived  by  iiim  to  be  given 
in  evidence,  IJaihaway's  case;  a  decision 
which  could  not  be  supported  in  the 
present  day. 

(1)  Du  l5ost  V.  Teresford,  2  Campb. 
512.  The  defence  was,  th:it  the  pict- 
ure (of  IJeauty  and  the  I>east)  was  a  li- 
bel, inasmuch  as  the  public  generally 
understood  who  the  individuals  meant  to 
be  portrayed  were,  by  looking  at  the 
picture. 

(2)  Ellis «».  Hardy,  1  M.  &  Ro.  ryir-,. 

(3)  Doe  dem.  Reed  v.  Harris,  7  C. 
&  P.  350.  A  testator's  declaration 
may  be  in  the  nature  of  original  evidence, 
wheie  they  are  adduced  for  the  purpose 
of  designating  the  object  of  his  bounty, 
or  the  subject  of  a  beijuest,  as  distin- 
guished from  evidence  of  his  intentions. 


(«)  The  declarations  of  a  testator  in  his  last  sickness  are  admissible  as  presnmp- 
tive  evidence  that  tiie  will  had  been  destroyed  by  him.  G  Wend.  173  ;  9  Cow. 
U.  308. 

Washington,  J.,  says  (4  Wash.  0.  C.  R.  265)  that  the  declarations  of  the  testa- 
tor, whether  previous  or  subser[uent  to  the  execution  of  the  will,  are  but  hearsay  ev- 
idence. They  are  not  admissible,  unless  they  are  a  part  of  the  res  gesta.  2  J. 
K.  31. 

In  ComstocU  v.  Hadlyme,  8  Conn.  R.  418,  where  the  question  arose  whetiier 
the  declarations  of  the  testatrix,  made  about  the  time  of  executing  the  will,  were 
admissible  ;  and  the  Court  said  to  be  admissible  they  must  be  part  of  the  res  gesta 
at  the  time. 

In  Atkins  v.  Sanger,  1  Pick.  192,  the  declarations  of  the  executor  who  was  also 
Jegalee,  were  admitted  for  the  parties  objecting  to  the  will,  to  prove  what  took 
place  at  the  making  of  the  will. 


Sect.   IJ 


Original  and  Hearsay. 


185 


od  ill  question  are,  in  their  nature,  original  evidence.  For 
they  arc  the  thing  itself  wliich  is  inquired  into,  as  far  as  out- 
ward hehaviour  is  important ;  and  as  evidence  of  inward  sen- 
timents, they  are  unhitc  a  statement  of  past  occurrences ;  for 
they  derive  their  credit  from  being  usually  identified  with,  and 
naturally  resulting  from,  particular  corresponding  feelings. 
Accordingly,  in  actions  for  criminal  conversation,  where  it  is  Leitersof 
material  to  inquire  into  the  terms,  upon  which  the  husband 
and  wife  lived  together  before  the  connection  of  the  wife  with 
the  defendant,  it  is  usual  to  give  evidence  of  what  the  hus- 
band and  wife  have  said  to  each  other,  in  order  to  shew  their 
demeanour  and  conduct,  and  whether  they  were  living  upon 
better  or  worse  terms.  (4)  With  the  same  object,  evidence 
has  been  given  of  *the  anxiety  expressed  by  the  wife  about  [  *201 
her  husband,  and  of  her  mode  of  speaking  of  him  in  his  ab- 
sence. (1)  On  the  other  hand  it  is  admissible  to  give  general 
evidence  in  reduction  of  damages,  that  the  wife  had  complain- 
ed of  her  husband's  treatment.  (2)  The  letters  of  the  wife 
to  the  husband,  (3)  or,  as  it  has  been  recently  decided,  the 
letters  of  the  wife  to  a  third  person  with  reference  to  her  hus- 
band, are  evidence  to  shew  what  her  feelings  were  towards 
him.  (4)  In  such  cases  the  jury  do  not  substitute  the  knowl- 
edge of  an  absent  person  for  their  own,  but  they  reason  as 
from  an  elfect  to  a  cause,  (a) 


(4)  Per  Lord  Ellenborough,  C.  .T.  iti 
Trelawney  v.  ('olemnn,  1  B.  &  A.  90. 
Per  Holroyd,  J.,  2  Sliirk.  C.  192,  stated 
to  be  so  ruled  by  Lord  Keiiyon,  4  Esp. 
39.  In  Jones  w.Tbompson,  fi  C.  &  P. 
415,  the  witness  was  asked,  wliclher 
the  wife  kept  a  journ.il,  and  for  what 
purpose.  The  evidence,  it  lias  been 
thought,  ought  to  be  general,  see  Winter 
V.  Wroot,  I  AL  &  l{o.  404. 

(1)  Trelawney  v.  Coleman,  2  Stark. 
C.  191.  ll  was  held  in  this  case,  that 
the  judgment  which  the  witness  had 
formed  from  llie  wife's  anxiety,  was  ad- 
missible. 

(2)  Winter  v.  Wroot,  1  ?.L  ii  Uo. 
404. 

(.3)  Trelawney  v.  ('oleman,  1  15.  Sc 
Aid.  90,  where  liiere  was  no  direct  evi- 


dence given  of  the  cause  of  the  parties 
living  separate.  Edwards  v.  Ciook,  4 
Esp   C.  39. 

(4)  Willis  D.  Bernard,  S  Bing.  376, 
where  it  was  said,  that  the  letter  was  no 
less  open  to  exception  than  if  written  to 
tiie  liu.sband.  The  letter  shewed  the 
wife's  allection,  and  also  that  she  was 
not  dissatislied  at  being  left  abroad  'I'he 
letter  also  contained  a  statement  of  facts, 
as  to  which,  though  the  whole  letter 
was  read,  it  was  not  evidence  Letters 
written  to  the  defendant,  before  the  crim- 
ir)al  facts  are  proved  to  have  been  com- 
mitted, are  receivable  Elsam  v  I'au- 
celt,  2  Esp  .5fi2  That  the  letters  of 
the  wife  are  not  in  general  evidence  for 
the  defendant,  see  B.  JN.  P.  2S. 


(a)  The  declarations  of  a  party  are  not  admissible  in  his  behalf,  unless  they  ac- 
company acts.  In  nn  action  for  breach  of  protfiise  of  marriage,  the  declaration  of 
the  plainlitV,  that  she  had  promised  to  marry  the  defendant,  made  long  before  tht; 
suit  brought,  was  held  to  be  good  evidence  for  the  plaintUr,  to  show  the  mulunlity 
of  the  contract.  1  Hals.  R.  ;584  .So,  where  the  question  was,  whether  it  was 
proper  to  admit  the  declarations  of  the  |)laintiH'  in  an  action  of  trover  to  recover  for 
bank  notes  lost,  the  court  said  it  was  ;  and  that  in  all  eases  where  the  ai-lsof  a  per- 
son can  be  given  in  evidence  for  him,  his  declarations  in  nilaiion  to  such  arts,  miK^t 
necessarily  be  admitted,  as  in  the  case  of  a  claim,  demand,  or  lender.      I'or  in  tlio 


first  two  cases,  it  is  tho  declaration  which  conslitules  the  act,  and  in  the  latter,  they 
form  part  of  it.     2  N.  Car.  K.  432. 

24 


186  Hearsay  Evidence.  [Ch.   13. 

Absence  of      jt  jg^  however,  always  required,  that  proof  should  be  given 
that  the  declarations  or  letters  of  a  wife,  purporting  to  express 
her  feelings,    were  of  a   time  antecedent  to  the  date  of  any 
facts  calculated  to  raise    suspicion  of  a  criminal   intercourse, 
and  when  there  existed  no  ground  for  imputing  collusion  (5). 
It  has  been  held,  that  the  letters  of  the  wife  are  inadmissible, 
if  written  after  an  attempt  to  commit  adultery  by  the  defend- 
ant. (6) 
Expressions      The  expressions  of  a  person  afflicted  with  bodily  pain  *or 
iiyh??"bodi-  illness,  relative  to  his  health  and  sensations,  have  been  consid- 
)y  feelings,    ered  to  be  in  their  nature  original  evidence  ;  such  expressions 

r  #00',^    1  '-'  ^  . 

1  '^^'-'  J  being  ordinarily  the  natural  consequence,  and  the  outward  in- 
dication of  co-existing  sufferings.  The  representations  of  a  pa- 
tient to  his  medical  attendant,  who  has  an  opportunity  of  ob- 
serving whether  they  correspond  with  the  symptoms  to  which 
they  refer,  appear  to  be  entitled  to  greater  weight,  than  if 
made  to  an  inexperienced  person,  and  to  afford  a  stronger  pre- 
sumption that  they  are  genuine  (1).  But  although  not  made 
to  a  medical  man,  they  appear  to  be  admissible  evidence.  (2) 
Relation  of  When  a  patient  enters  into  a  history  of  his  complaint,  and 
sympt'oms.  Tclatos  some  earlier  symptoms,  experienced  at  a  former  period, 
he  is  giving  a  narrative  from  memory,  rather  than  yielding  to 
the  impressions  forced  upon  him  by  his  situation ;  and  it 
would  seem  upon  principle,  that  what  he  says  ought  not  to  be 
received  in  evidence.  The  case  of  Aveson  v.  Lord  Kin- 
7iaird,  (3)  as  to  this  point,  appears  to  have  been  decided  on  its 
peculiar  circumstances.  That  was  an  action  upon  a  policy  of 
insurance,  by  which  the  plaintiff  had  insured  the  life  of  his 
wife.  The  plaintiff  produced  a  surgeon  as  a  witness,  who 
had  given  a  certificate  upon  which  the  policy  had  been  effec- 
ted, that  the  wife  was  in  good  health  on  a  particular  day  ;  and 
he  swore  at  the  trial  to  his  belief  of  the  fact.  On  cross-ex- 
amination, he  stated,  that  his  opinion  was  formed  principally 
from  her  answers  given  at  the  time.  The  defendant,  in  or- 
der to  meet  this  evidence,  produced  a  witness  who  had  been 
an  intimate  friend  of  the  wife,  and  had  called  accidentally  up- 
on her  within  a  week  after  the  day  to  which  the  certificate 

(5)  Edwards  v.  Crook,  4  Esp.  39,  (1)  See  tlie  observations  of  the  At- 
where  the  letters  were  refused  on  this  torney  (ieneral  (Copley)  in  tiie  Gardiner 
ground.      Trelawney  v.    Coletnan,  1  B.     Peerage  case,  p.  79. 

&  Aid.  90.  Houliston  v.  Smith,  2  C.  (2)  Aveson  v.  Lord  Kinnaird,  6  East, 
&  P.  24,  where  it  was  held  that  liie  188,  where  the  representations  were 
dates  of  llie  letters  were  not  sulficient  made  to  an  intimate  friend.  And 
evidence  of  the  time  when  they  were  the  rule  is  there  laid  down  by  Lord  El- 
written.  In  Trelawney  v.  Coleman,  2  lenhorough,  with  regard  to  patients. 
Stark.  191,  the  period  at  which  the  let-  without  (lualification.  The  representa- 
ter  in  question  was  written,  was  proved  lions  admitted  in  that  case  were  opposed 
by  a  person  to  whom  the  wife  read  the  to  other  representations  made  by  the 
contents.  In  other  cases,  the  postmark  same  individual  to  a  surgeon, 
has  afforded  the  requisite  proof.  (3)  6  East,  18S. 

(6)  Wilton   V.    Webster,    7  C.  &  P. 
198. 


Sect.   1.]  Original  and  Hearsay.  187 

related,  and  found  her  in  bed  with  the  appearance  of  being 
ill :  and  the  wife  related  to  this  witness  that  she  had  not  been 
well  from  a  time  which  included  the  day  specified  in  the 
certificate.  This  evidence  of  the  defendant's  witness  was  al- 
lowed ;  first,  on  the  ground  that  *it  was  the  declaration  of  a  [  *203  | 
patient  on  the  subject  of  her  own  health  at  the  time  ;  and 
secondly,  that  it  was  a  species  of  cross-examination  of  the 
surgeon  produced  by  the  plaintiff,  and  who  had  formed  his 
opinion  principally  in  consequence  of  the  wife's  answers.  It 
is  to  be  observed,  however,  that  the  part  of  the  wife's  con- 
versation with  the  defendant's  witness,  which  was  material  to 
the  case  did  not  relate  to  her  contemporary  sensations,  but  to 
the  state  of  her  health  at  a  previous  time  ;  an  objection  which 
does  not  appear  to  have  applied  to  the  answers  given  to  the 
surgeon. 

In  the  Gardiner  Peerage  case,  where  the  inquiry  turned  up- 
on the  ordinary  period  of  gestation,  the  medical  witnesses 
were  not  allowed  to  state  what  they  had  been  told  by  women, 
whom  they  had  attended  in  their  confinement,  as  to  the  date 
of  their  conception.  It  was  held  to  be  an  objection  to  the 
evidence  tendered,  that  it  related  to  a  circumstance  which 
took  place  before  the  medical  men  were  consulted.  ( 1 ) 

Although  it  is  now   settled,   that  what  a  patient   says  to    a  Cause  of 
medical  man  about  his  suff"erings  is  receivable  in  evidence,  (2)  '"J"''^" 
it  might  seem  that  a  statement  by  him  respecting  the  particu- 
lar cause  of  his  sufterings,  (as,  for  example,  the  circumstances 
of  an  assault  wliich  he  had  received,)  would  be  open  to  great- 
er objection.     It  was,  however  held  in  the  case  of  Thompson 
and  Uxor  v.  Trevanion,  (3)  that  what  the    wife  said  imme- 
diately on  receiving  an  injury,  and  before  she  had  time  to  de- 
vise any  thing  for  her  own  advantage,  was  evidence.   From  the 
report  of  the   case,   *which   is  very  short  and  loose,   it  may  [  *204  ] 
perhaps  be  presumed,  that  the  wife  had  related  the  particulars 
of  the  assault :    and  in  R.  v.  Foster,  (1)  it  was  held  by  Gur- 
ney,  B.,  and  Park,   J.,  that  what  a   deceased  person  had    said 
immediately  upon  receiving  a  fatal  injury,  as  to  the   cause  of 

(1)  Ciardiner    Peerage    ca«e,    p.    79,     lo  shew  wliat    lio   ciiflered    b)'  reason  of 
136,  170,  several  of  the    women    were     an  assault. 

afterwards  produced    as   witnesses,    and  (:{)  SUinner,    402,   riled  l)y  r,ord  EI- 

their  evidence  shewed  in  a  stril<iiio  man-  lenboiouf^h  in  Aveson  v.  Lord  Kinnaird, 

ner,  the  dili'erence    between  taking  their  (i  East,  188       In  Adams  v.    Arnold,  12 

evidence    from    their    representations    to  Mod.  .''75,  an  action  <d"  assault  on  plain- 

the    medical    witnesses,  and    taking  it  in  till's  wife,  and    getting    her   with  child; 

open  court,  sul)ject  to  l)eiiig  sifted  accord-  what  the  wife  dechned  in  her  labour  was 

ing  to  those  rule-;,   which  experience  has  rejected    liut  as  the  iiature  of  the  wife's 

found  to  be  so  useful    in  separating  truth  declaration  is  not  stated,  nor    the   reason 

from  error.  assigned  for    its  rejection,  the    case    is  of 

(2)  In    Aveson  v.    Lord  Kinnaird,  6  little  value. 

East,  ISS,  Lawrence,  .!.,  says,  it  is  every  (I )   0  C  &  P.    "2').       I'nl  see  R.    r. 

day's  experience  that   what  a   man    has     Clarke,  infra,  n.  V>. 
said  of  himself  to  his  surgeon,  is  evidence 


188 


Hearsay  Evidence. 


[Ch.   12. 


Complaint 
iu  rape. 


Declara- 
tions ac- 
company' 
iiig  posses- 
sion. 

[  *205  ] 


the  injury,  was  admissible  evidence.  It  may  be  observed, 
that  these  difter  from  those  which  have  been  decided  respect- 
ing the  statement  of  a  patient's  complaint  ;  for  statements  of 
the  latter  description  would  not,  it  is  conceived,  depend,  for 
their  admissibility,  ujwn  the  time  when  the  injury  was  re- 
ceived. 

In  prosecutions  for  rape,  though  it  has  been  regarded  as  ad- 
missible evidence,  on  the  part  of  the  prosecution,  and  is  gen- 
erally considered  essential,  to  show  that  the  prosecutrix  made 
a  complaint  recently  after  the  commission  of  the  alleged 
crime  ;  (2)  yet  it  has  been  held,  that  the  particulars  of  the 
complaint  are  not  evidence  of  the  truth  of  the  statement.  (3) 
It  is  now  the  general  practice  to  exclude  any  mention  of  the 
details  of  the  complaint.  In  case  of  the  death  of  the  party 
injured,  or  in  case  of  lier  absence  for  any  cause,  the  particu- 
lars of  her  complaint,  stated  in  the  absence  of  the  prisoner, 
could,  uaderno  circumstances,  be  received  ;  which  shows  that 
such  statements  are  not  regarded  as  part  of  the  res  gestcn.  (4) 
This  further  appears  from  the  consideration,  that  what  is 
deemed  a  recent  complaint  depends  on  various  circumstances, 
and  especially  on  the  opportunity  of  communicating  with  fe- 
male relations. 

Declarations  of  persons  in  possession  of  property  have,  in 
*some  cases,  been  received  as  original  evidence,  explanatory 
of  the  nature  of  their  possession.  Thus,  the  declaration  of  a 
widow,  in  possession  of  certain  premises,  that  she  held  them 
for  life,  and  that  after  her  death  they  would  go  to  the  heirs  of 
the  husband,  have  been  held  admissible,  to  negative  the  fact 
of  her  haying  had  twenty  years'  adverse  possession  ;  but  it 
seems  to  be  now  considered,  that  such  declarations  are  not  ev- 
idence, unless  they  are  against  the  interest  of  the  person  ma- 
king them.  (1)  (a) 


(2)  The  peint  is  rather  assumed  than 
expressly  decided  in^  Brazier's  case,  1 
East's  P..  C  444.  Out  it  is  tiie  common 
practice  to  give  evidence  of  this  nature; 
and  the  absence  of  recent  complaint,  un- 
less explained  by  particular  circumstan- 
ces, is  generally  fatal  to  the  prosecution, 
see  1  Leach,  199.  1  Russel  on  Crimes, 
565.  According  to  the  old  law  respec- 
ting rape,  it  was  required  that  the  wo- 
man should  have  gone  to  the  next  town, 
immediately  after  the  olfence  was  com- 
«iiiteed,  cum  clamor e  et  hutesio,  1 
Hale's  P.  C.    632.      Barrington   notices 


that  certain  periods,  within  which  com- 
plaint was  to  be  made,  were  limited  by 
the  laws  of  several  countries.  Observa- 
tions on  the  Statutes,  p.  12.5. 

(3)  U.  V.  Clarke,  2  Stark.  C.  242. 

(4)  It  seems  formerly  to  have  been 
considered,  tliMt  the  narrative  of  an  in- 
fant presently  alter  the  wrong  done,  was 
receivable  in  evidence.  See  the  au- 
thorities in  I  East's  P.  C.  441. 

(1)  Doer.  Pettet,  5  B.  &  A.  224. 
Doe.  V.  Uicharly,  5  Esp.  4,  was  a  caso 
decided  apparently  on  the  principle  men- 
tioned in  the  text.      There  the  declara.- 


(«)  See  1  J.  R.  159;  4  Mass.  702;  3  .1.  R.  536;  6  id.  267;  10  id.  66. 

The  declarations  of  a  person  in  the  possession  of  land,  are  admissible  to  show  tiie 
<;haracter  and  intent  of  such  possession,  notwithstanding  the  statute  of  frauds.  Per 
Mellen,  C.  J.  2  Greenl.  243. 

The  d«claraliojis  of  a  person  in  possession  of  land,  as  to  the  true   boundary  line 


Sect.   1.]  Original  and  Hearsay.  1S9 

On  a  question   of  legitimacy,    the  declaration    of  a  lady,  J|',"^!^R.d'°" 
whose  marriage  was  in  question,  that  a  certain  box  contained  iVom  decia- 
her  marriage  certificate,  was,  after  objection,  received  both  by  """"• 
Chief  Justice  Dallas  and  Lord  Tenterden,  C.  J.,  as  evidence, 
that  she  was  then  in  possession  of  a  document  of  a  particular 
description.  (2)       Here   the    fact   of  possession  was    inferred 
from  the  declaration,   which  was  not  merely  explanatory  of  a 
known  possession,  {a) 

The  original  evidence  of  verbal  or  written  matters,  which  Or'-inai.ie- 
has  been   here    considered,  is  often  said  to  be   admissible,  as  .lotpanof 
constituting  a  part  of  i\\Q  res  gestoi.     In  several  of  the  exam-  JJ'^^^^f 
pies  above  given,  the  words  or  writings  are  in  themselves  in- 
dependent transactions,    yet  in    some,   they  are  the    ultimate 
facts  of  inquiry,  not  necessarily  connected  with  any  act  done  ; 
in  others,  they  are   receivable  as  the  natural    and    immediate 
result  of  particular  situations,  impulses,  or  feelings.  (3) 

tions  of  a  person,  found  in  possession  of  of  the   decision.       There  is  another    nu- 

premises,  that  he  rented  them,  were  held  morons  cliit^s  of  cases,  where  decl:traiions 

to  be  evidence  of  an  underletting.     The  of  persons  are    received    on    liie   ground 

case  is  opposed  by  a  conflicting  aecision,  that  a  pai  ty  to  the  suit  is  identified  in  in- 

Doe  V.    Payne,  1    Starl<.    C.  86.     See  4  lerest  with  the  declarant. 
Tauut.  766.     Doe  v.  Williams,  6  15.  &         (2)   Bere  v.  Ward,   printed   report   of 

C.  41.     Doe  d.    Sweelland  v.    Webber,  trial  on  first  issue  ;  and  on    second  issue, 

1  Ad.  &  Ell.   738.     It  is  difficult  to  dis-  p.  164.      The  evidence  was    otiered  for 

tinguish  the  class  of  cases  under   consid-  the  purpose   of  connecting  a    cerlilicato 

eration,  from  a  numerous    class  of  cases  produced  in  evidence,   with  a    docunient 

in  which  declarations  of  deceased    per-  in  her  custody. 

sons     against   interest     are    adtnissible.  (3)  The  nature  of  those  words  or  wri- 

Carne  v.   Nicoll,    1    Bing.    N.    C.  430.  tings  which  nre  facts    in  themselves,  will 

And  it  may  perhaps  be  thought,  that  the  be  further  illustrated  in  the  section  whicli 

case  in   the  text    belongs    to    this   class,  treats  of  admissions, 
though  such  is  not  stated  to  be  the  ground 

between  him,  and  the  land  of  another,  are  admissible  in  evidence.      10  .T.  B.  387. 

The  declarations  of  a  former  Isolder  of  the  adjoining  lands,  as  to  the  boundary  of 
the  land  in  question,  was  admitted;  it  not  appearing  that  he  had  any  interest  in  tho 
facts  to  be  established.     2  Har.  &:  J.  121. 

It  is  in  general  true  that  the  declarations  of  a  person  who  is  a  competent  witness 
cannot  be  given  in  evidence;  but  a  party  is  not  compelled  to  call  a.  party  in  inter- 
est, merely  because  he  may  do  so;  and  if  he  did  call  him,  such  a  party  in  interest 
could  not  be  competent  to  testify,  7  Cowen,  174;  Jackson  v.  Myers,  11  Wend. 
533.  The  declarations  of  a  parly  in  possession  of  the  premises  in  dispute,  if  made 
when  in  possession  of  the  premises,  are  admissible;  and  are  admissible  as  good  evi- 
dence against  him  and  all  those  claiming  under  him.     .Jackson  v.  Bard,  4  J.  U.  230. 

In  ejectment,  defendants  claimed  title  to  the  land  in  question  under  a  deed  from 
one  iM.  to  their  ancestors;  and  it  appeared  that  AI.  derived  his  title  from  one  A.  J\l.: 
Held,  that  the  declarations  of  M.  were  admissible  to  show  that  the  conveyance  to 
him  by  A.  M.  was  fraudulent.  7  Conn.  319;  1  J.  R.  159.  See  4  N.  II.  R.  213; 
15  J.  R.  234;  2  N.  H.  R.  369;  id.  387;  14  Mass.  245.  But  see  5  Binn.  R.  109, 
where  it  was  held,  that  declarations  by  the  grantor,  at  the  time  of  executing  a  deed, 
that  he  only  did  it  for  a  sham,  so  that  people  could  not  come  at  it,  are  not  evidence, 
if  made  in  the  absence  of  the  grantee,  unless  ground  is  previously  laid,  by  showing 
a  trust  in  the  grantee,  or  his  participation  in  the  fraud. 

(a)  The  declarations  of  a  parly,  made  before  an  adverse  possession  was  taken, 
as  to  his  intention  in  removing  from  the  premises,  were  admitted  in  evidence  in  his 
favor,  on  a  traverse  of  an  inquisition  of  forcible  entry.     5  Lill   N.  5. 

The  declarations  of  a  co-heir  are  admissible  to  show  his  intention  upon  entering 
into  lands  for  the  puipose  of  proving  him  to  be  an  abator.  Shumway  v.  Ilolbrook, 
J  I'ick.   114. 


190  Hearsay  Evidence.  [Ch.   12. 

^I'"^'",f !.'°'  *  Words  and  writings  appear,  perhaps,  more  properly  to  be 
part' of  the  admissible  as  part  of  the  res  gestce,  when  they  accompany 
r"^Jm'  1  ^^^"^^  ^^^'  *^^^  natnrc  and  object  or  motives  of  which  are  the 
L  '^  J  subject  of  inquiry.  In  such  cases,  words  are  receivable  as  origi- 
nal evidence,  on  the  ground  tliat  what  is  said  at  the  time  af- 
fords legitimate,  if  not  the  best,  means  of  ascertaining  the 
character  of  such  equivocal  acts  as  admit  of  explanation,  from 
those  indications  of  the  mind,  which  language  affords.  For 
where  words  or  writings  accompany  an  act,  as  well  as  in  the 
instances  before  considered  where  they  indicate  the  state  of  a 
person's  feelings  or  bodily  sufferings,  they  derive  their  credit 
from  the  surrounding  circumstances,  and  not  from  the  bare  ex- 
pressions of  the  declarant.  And  the  language  of  persons  at 
or  about  the  time  of  their  doing  a  particular  act,  in  the  same 
manner  as  their  demeanour  or  gesture,  is  more  likely  to  be  a 
true  disclosure  of  what  was  really  passing  in  their  minds,  than 
their  subsequent  statements  as  to  their  .intentions,  even  if 
such  statements  would   not  be  excluded  on  other  grounds,  (a) 

(a)  See  Marty n  v.  Simpson,  4  M'Cord,  262. 

Tlie  declarations  of  an  agent  when  pait  of  the  res  gestep,  are  admitted  in  evi- 
dence. 3  Litt.  127;  4  I'ick.  379.  A  fact  admitted  or  stated  by  an  agent,  in  re- 
lation to  a  transaction  in  wiiich  he  is  liien  engaged,  and  whilst  it  is  in  progress 
forms  a  part  of  the  transaction,  4  Wash.  492.  So,  tlie  declarations  of  an  agent 
and  supercargo  in  the  course  of  his  business,  as  such  agent,  are  clearly  competent. 
2  Hall,  482. 

The  declarations  of  an  agent,  so  far  as  they  constitute  the  res  gestfs,  or  in  other 
words,  such  as  are  made  by  him  at  the  lime  he  is  engaged  in  making  a  contract  oa 
the  part  of  the  principal,  and  having  reference  to  the  subject  matter  of  the  contract, 
may  be  given  in  evidence  to  adect  his  principal.  ,They  are  admitted  as  the  repre- 
sentations of  the  principal  himself,  whom  the  agent  represents  while  engaged  in  the 
particular  transaction  to  which  the  declaration  refers.  Per  Parris,  J.  7  (Jrecnl.  II. 
421. 

The  difficulty  is  in  laying  down  any  rule  as  to  what  will  constitute  the  rei>  gestce. 
In  Pool  V.  Bridges,  4  Pick.  378,  the  plaintiff  came  to    enquire    about    some  wool 
'  which  he  had  previously  delivered  to  a  manufacturer,  when  the  latter   pointed  out 

certain  portions  of  it  as  his  property;  and  the  court  decided  that  this  declaration  ac- 
companying the  act  might  be  proved  in  an  action  against  an  Ofiicer  claiming  to  hold 
the  property  by  process  of  law. 

So,  the  correspondence  between  the  parties; — between  the  principal  and  agent, 
written  at  or  about  the  time,  are  admissible  as  part  of  the  transaction.  The  com- 
munication of  facts  which  coming  to  the  knowledge  of  the  principal  may  be  used 
as  construing  his  subsequent  acts.  8  Pick.  56.  The  court  said  the  situation  of  the 
parties,  the  subject  matter  of  their  transactions  and  the  whole  language  of  their  in- 
struments, should  have  operation  in  settling  the  legal  etfect  of  their  contract. 

Articles  of  agreement  between  two  persons  are  admissible  as  admissions  to  show 
the  nature  of  the  connection  between  the  parties.  But  the  admission  of  one  can- 
not affect  the  other,  except  the  party  representing  himself  to  be  a  partner  does  so 
with  the  knowledge  of  the  other.     2  Hall,  351.     See   ISMass.  38. 

If  a  husband  allows  his  wife  to  transact  business  for  him,  he  must  be  bound  by 
her  acts.  Thus,  where  the  wife  of  the  plaintiff' was  entrusted  by  him  with  certain 
moneys,  and  directed  to  deposite  them  in  some  bank,  she  opened  an  account  in  her 
own  name  with  the  defendants,  and  made  deposites  from  time  to  time.  She  gave 
directions  as  to  the  manner  in  which  the  money  standing  to  her  credit  was  to  be 
drawn  out  on  her  checks,  and  various  checks  were  accordingly  drawn  by  her 
for  the  whole  amount.  The  defendants  had  no  knowledge  that  she  was  a  married 
woman  until  after  they  had  paid  all  the  checks  and  closed  her  account.  The  hus- 
band then  sougiit  to  recover,  on  the  ground  that  the  payment  to  the   wife  was  im- 


Sect.  1.]  Original  and  Hearsay.  191 

Thus,  in  an  action  on  the  case    for  fraudulently  represent-  J;raucinient 
ing  the  solvency  of  a   person,   whereby  the    pkiintitis  trusted  uiion. 
him  with  goods,  their  declarations  at  the  time   they  were  ap- 
plied to  for  the  goods,  are  admissible,  to  show  tliat  they  gave 
trust  in  consequence  of  the  representation.  (1)      A  letter  be-  Envelope, 
ing  the  envelope  of  a  promissory  note,  has  been  admitted    to 
show  for  what  purpose  it  was  sent.  (2)  In  an  action  for  crim-  Dcciara- 
inal  conversation,  where  the  defence  was,    that   the   plaintiff  '".'"^  ^' 

,  .  Wife. 

had  connived  at  his  wife's  elopement,  evidence  was  received 
on  the  part  of  the  plaintiff  of  the  wife's  declarations  as  to  her 
intentions  and  purposes  in  going.  (3)  And  in  Aveson  *v.  Loi'd  [  *207  ] 
Kinnaird.  (l)Lord  EUenborough  observed,  that  if  a  wife,  up- 
on quitting  her  husband's  home,  declared  at  the  time  that  she 
fled  from  immediate  terror  of  personal  violence,  he  should  ad- 
mit the  evidence:  though  not,  if  it  were  [a  collateral  declara- 
tion of  some  matter  which  happened  at  another  time,  (a)    In  F^urUiieut 

J-  J.  \     /  convey 

an  action  against  a  sheriff"  lor  a  false  return,  where  the  defence  ance. 

(1)  Fellovves  u.  Williamson,  1  JM.  &  lion  being,  vvhelher  it  vvaa  in  ;i  I)ani<rui)t's 
M.  306.  The  goods  were  lurnislied  five  possession  for  a  speciiil  purpose  only, 
months  after  the  representation  ;  but  the  (3)  lloare  v.  .Allen,  3  Esp.  27<i.  'J'he 
representation  was  expressly  referred  to  evidence  was  doubtinirly  adiiiitled.  The 
on  delivery.  And  see  IMoore  v.  Strong,  wife  represented  that  she  was  only  going 
1  l<ing.  IN.  C.  441 ;  conversation  at  time  to  her  uncle's  house  and  ihe  husiiand 
of  delivering  goods,  to  shew  whether  sull'ered  her  to  go  under  ihat  impression, 
furnished  by  way  of  payment.  (1)   6  East,   188.     And  see  Walter  t?. 

(2)  Bruce  i>.  Hurley,  1  Stark.  24.  Green,  1  C.  &  P.  G21.  Confession  by 
The  plaintiff's  own  letter  was  admitted  a  wife  of  adultery  iminedialely  previous 
for  liimself,  to  show  that  the  note  had  to  being  turned  out  of  doois;  and  letters 
been  sent  to  procure  payment,  the  ques-  found  in  her  writing  desk. 


authorized.  The  judge  submitted  the  fact  to  the  jury,  whether  the  wife  was  author- 
ized as  the  agent  of  her  husband  to  do  what  she  had  done,  or  whether  he  had  sub- 
sequently ratified  lier  acts.  The  jury  found  a  verdict  for  the  defendants  ;  and  on  a 
motion  for  a  new  trial,  the  court  aftirmed  the  verdict  and  denied  the  motion.  Dacy 
T.  The  N.  York,  Chem.  Manuf.  Co.  2  Hall,  550.  In  the  absence  of  any  circum- 
stances to  charge  the  bank  with  notice  that  siie  was  a  married  woman,  iliey  had  a 
right  to  open  an  account  with  her  as  a  feme  sole,  and  to  pay  the  checks  drawii 
upon  the  deposites  made  by  herself. 

If  slie  act  by  his  permission,  or  is  constituted  his  agent  or  attorney,  or  her  decla- 
rations are  referred  to  by  him,  as  a  test  of  a  fact,  then  what  she  declares  is  good  ev- 
idence against  the  husband,  not  by  reason  of  her  being  his  wife,  but  becanse  she 
acts  in  pursuance  of  authority  delegated  by  him,  or  is-  made  a  witness  by  his  con- 
sent.    Turners.  Coe,  5  Conn.  93;  JO  J.  li.  38. 

(a)  See  the  observations  of  Hosmer  in  5  Conn.  93. 

Where  declarations  of  an  individual  arc  so  connected  witli  his  acts  a.s  to  derive 
a  degree  of  credit  from  such  connection,  independently  of  the  declaration,  the  de- 
claration becomes  part  of  the  transaction,  and  is  admissible  in  evidence.  Thus, 
in  lladley  v.  Carter,  8  N.  H.  R.  40,  in  an  action  by  the  master  against  defen- 
dant for  enticing  away  ids  servant,  the  declarations  of  the  latter  were  admitted  to 
show  the  motives  which  governed  him  in  leaving;  it  is  part  of  the  transaction,  and 
may  be  given  in  evidence  in  the  same  manner  as  any  oilier  fact. 

In  an  action  against  a  voluntary  bailee,  for  the  loss  of  goods  by  careless  and 
gross  negligence,  the  defendant  may  give  in  evidence  his  own  acts  and  declarations 
immediately  before  and  after  the  loss,  to  repel  the  allegation  that  the  loss  was  oc- 
casioned by  his  own  neglect,  carelessness,  and  mismanagement.  'J'ompkins  w. 
Sailmarsh,  14  S.  &  R.  275.     See  also  Pool  v.  Bridges,  4  Pick.  37b. 


^elliii" 


192  Hearsay    Evidence.  |Cli.    12. 

was  a  fraudulent  bill  of  sale,  declarations  by  the  party  execut- 
ing the  bill  of  sale,  made  by  him  at  the  time  of  execution, 
were  held  to  bo  admissible,  but  not  those  made  at  another 
time.  (2)  Where  a  trader,  being  in  embarrassed  circumstances, 
executed  an  assignment  for  the  benefit  of  his  creditors,  it  was 
lield,  in  an  action  after  his  death  against  the  assignee, 
treating  him  as  executor  de  son  tort,  that  a  list  of  credit- 
ors made  out  ;diout  the  time  of  the  execution  of  the  assign- 
ment, by  the  direction  of  the  assignor,  was  evidence  as  part 
of  the  transaction  for  the  purpose  of  disproving  fraud.  (3)  (a) 
naiikrupi-  Upon  qucstious  of  bankruptcy,  where  the  intentions  of  the 
p'^ong  1  ^alleged  bankrupt  are  often  material  to  be  inquired  into,  it  is 
usual  to  give  evidence  of  declarations,  as  furnishing  an  ex- 
])laiiation  of  transactions  in  their  nature  equivocal.  (1)  (6) 
r.tiyino;  and  Thus  it  lias  been  held,  that  a  declaration  accompany- 
ing a  purchase  of  goods  is  admissible  evidence,  to  show 
whether  a  person  sought  his  living  by  buying  and  selling.  (2) 

(2)    l'l\ilips   V.   Cnmer,    1    Esp.  3.")7.  is-;ory  note,    cotileinporaneoiis    with    tlic 

For  other  examples    of   the    res   f;cst<c  making  of  tlie  note  were  held  admissible 

principle,   see  I'enii  v.    Scholey,  5    Esp.  to  prove  usury,  on    the  ground    that  the 

21'3.     All  affidavit  to  explain  an  e\ecu-  plaintiirciainied  title  through  the  payees. 

tion  on  n  judgment.       Uehli  v.  Thomas,  8ee  per  Park  .1.,  in  Beauchaiiip  v.  Parry 

2  W.  Bl.  i04o.     Contemporary  declara-  1  15.  &    A.   d.  91. 

tion.»,  explaining  equivocal  act  of  cancel-         (3)  Lewis  v.  Rogers,  1    Cr.  M.  &  R. 

iing  a  will.       Irving  v.  tintenwood,  1  C.  IS.     4  Tyr.    872.     And    see    Prideaux 

&  P.  350.       Action  for  breach  of  prom-  v.  C<iliicr,  2  Str.  67.     Declarations  by  a 

ise  of  marriage,  evidence  of  parent's  dis-  drawee  on  presentment  of  a  bill.     Ryle 

jipproval     and    reasons    a-ssigned   for    it.  r.  llaggie,  1   Jau.  &  \V.  2.34  ;  declara- 

Tilk  V.  Parsons,  2  C.  &  P.  201.     Kea-  lions  as  to  property  being  parted  with  by 

sons  assigned  by  third  persons  not  allow-  way  of  gift. 

c'd  to  he  given  in    evidence.       Ashley  y.  (1)   (inestions   on  this   subject  are  to 

iiarris(m,    1    Esp.    50,    S.    P.       l\,e.\    v  be  distinguished  from  numerous  questions         _ 

Whitehead,   1    C.    &  1'.    69;    letters    of  respecting    the    reception    of  admissions       S 

person  indicted  for  a  conspiracy,    shew-  ofliankrupts  concerning  their  trading,  or  si 

<ng   that    he    was    the    dupe    of  others,  the  petitioning  crciditor's  debt,  and  vvliicii 

Collenridge  v.    Earquarson,    I  Stark.  C  are   not   explanntory  of  any    t-o-existing 

259.     A  distinction  between  an  entry  in  motives.     Parker  v.  Darker,  1  Br.    &  B. 

an  account  book  made  after  the  transac-  9.     Bromley  v.   King,   R.    Sc    M.    228. 

lion,  and  a  contemporaneous  entry.       It  Jiespecting  admissions   of  tmding   made 

often    happens    liiat   declarations    which  liefore     liankru()tcy.       ^^mallcolnbe     v. 

arc  in  their  nature  original  evidence,  are  Bruges,  RPClel.   4.j.     Sanderson  i'.    La- 

ulso  receivable  on  the  ground    that    they  forest,  1  (,'.  &,  P.  Ifi,    respecting    admis- 

are  made  iiy  persons  identilied  in  interest  sioiis  of  petitioning    creditor's  debt,  and 

with  the  parties  to    a  suit.       As  in  Kent  vide  infra,  the  chapter  on  admissions. 
V.  Lowcn,  1  Camp.    177.  where    lelter.s         (2)  Gale  v.  Ildlfi<niglit,  3  Stark.  58. 
(Vom  the    payee  to  the  maker  of  a  proiii- 


(a)  In  Benliam  r.  Gary,  11  Wend.  83,  where  the  question  was  whether  the 
transfer  of  personal  pro[ierty  had  been  fraudulent,  liie  court  admiited  evidence  of 
other  instances  or  transactions  about  the  same  time,  in  relation  to  other  portions  of 
the  debtor's  property,  in  which  the  tiilewas  nominally  in  the  present  claimant,  but 
the  sale  was  actually  made  by  the  debtor,  and  the  consideration  money  received 
by  him.  Upon  questions  of  this  description,  a  considerable  latitude  is  indulged  in 
the  admission  of  evidence. 

(b)  Declarations  made  by  an  insolvent  before  and  after  bis  discharge  under  an 
itisolveiit  law  havo  been   adniiltod  in  evidence  against  him.     2  liar.  &  J.  402. 


Sect.   1.]  Onginal  and  Hearsai/.  193 

Similar  evidence  has  been  received  to  explain  a  bankrupt's  Preference, 
motives,  where  a  payment  made  by  him  is  sought  to  be  in- 
validated as  a  fraudulent  preference.  Upon  such  a  question, 
it  is  competent  to  inquire  into  the  bankrupt's  declarations  as 
to  the  state  of  his  affairs,  made  about  the  time  of  the  transac- 
tion in  question,  though  not  accompanying  or  connected  with 
that  transaction.  (3)  Audit  is  very  common  to  give  evidence 
of  conversations  and  letters,  in  order  to  explain  acts,  which, 
according  to  the  intentions  of  the  party  at  the  time,  may  or 
may  not  amount  to  acts  of  bankruptcy.  (4) 

Much  discussion  has  arisen    with   respect  to  the  limits  of  Time  of  de- 
time,  with  reference  to  the  date  of  the  transactions  insisted  up-  '^  ''^*"""- 
on  as  an  act  of  bankruptcy,  within  which  the  declarations  of 
the  alleged  bankrupt  ought  to  be  proved  to  have  been  made,  in 
order  to  be  received  in  evidence.  It  is  a  question  for  the  Court, 
in  each  case,  to  consider,  whether  the  declaration,  proposed  to 
be  received,    does  or  does  not  come  within  a  reasonable   time 
of  the  disputed  act  :  and,  for  this  purpose,   the  Court  will  in- 
quire into  *the  existence  of  any  connecting  circumstances  be-  [  *209  ] 
tween  the  declaration  and  the  act.  (1)      The  rule  is  not  con- 
fined to  the  precise  time  of  the  act  in  question.  (2) 

tn  the  leading  case  upon  the  subject,  Bateman  v.  Bai-  A*"'*  o*" 
ley,  (3)  a  conversation  Avith  the  bankrupt  was  permitted  ruptcy. 
to  be  given  in  evidence,  which  had  passed  on  his  return  home 
at  night,  after  having  been  absent  nearly  two  days.  And 
this  case  has  been  recognised,  and  followed  by  subsequent 
authorities  to  the  like  effect.  (4)  In  one  of  the  latest  cases 
the  trader  absented  himself  on  the  16th  of  February  till  the 
9th  of  March  ;  and  two  letters  written  by  him  on  the  16ih  of 
January  preceding,  asking  for  time  on  two  bills  of  exchange 
payable  in  February,  were  received,  as  showing  that  the  bank- 
rupt was  a  needy  man,  and  to  give  a  colour  to  his  absence.  (5) 

(3)  Vacher  r.  CocIjs,  1  M  &  M.  353.  inference  of  intention  to  previous  or  con- 
Herbert  w,  Wiicocks,  1  M.  &  IM.  355,  n.  temporary  declarations,  may,  perluip-". 
That  the  intention  upon  such  a  question  be  considered  as  no  longer  adhered  lo  by 
is  material,  see  Cook  v.  Rogers,  7  Liing.  the  Courts.  The  rule  seems  to  have 
438.  Ilarman  u.  Fisher,  Covvper,  117.  l)een  formerly  confined  to  contemporary 
J^etters  inclosing  bills  to  a  favored  credi-  declarations.  Lord  llardwicUe,  in  Am- 
lor.  Guthrie  v.  Crossley,  2  C.  &  P.  301.  brose  v.  Clendon,  Ca.  temp.  IJard.  2(J7, 
Questions  and  answers  in  the  absence  of  whore  tlie  bankrupt  was  packing  up  his 
ihe  favored  creditor.  books  and  goods. 

(4)  n.  N.  I*.  40.  Robson  I)  Rolls,  (3)  5  T.  R.  .512.  The  language  of 
J)  I5ing.  349,  to  explain  act  of  abseming.  the  Court  is  not  quite  so  strong  as  the  ef- 
That  the  bankrupt  cannot  be  called  to  ex-  feci  of  the  decision.  See  observations 
plain  an  act  atiecling  his  commission,  on  this  case,  Kden's  lianknipt  F.avv,  3d 
Jayeru.  Garnet,  7  liing.   103.  edit.  p.  360.    Kvans's  I'othier,  vol.  2,  j). 

(1)  See  the  observations  of  the  Court     285. 

in  Ridley  v.  Gyde,  9  Bing,  349,  and  in  (4)   Newman  r.   Stretch,    1  M.   &  IM. 

Raw=on  «.  Ilaigb,  2  Ring,  99.  338.     Rawsoti    v.    llaigh,  2    Ring.    99. 

(2)  Seethe  observations  of  the  Court  Robson  d.  Gyde,  9  Ring.  349.  There 
in  Ridley  v.  Gyde,  9  Ring.  349.  The  is  also  a  prior  case,  Maylcr  v.  Eyloe,  2 
language  of  Lord  I'lllenborough  in   Rob-  Str.  80.'). 

soa  V.  Kemp,  4  Esp.  233,   corfining  the       (5)  Smith  v.  Cramer,  1  Ring.  N.  C.  585- 
2.5 


194 


Hearsay  Evidence. 


[Ch.   12. 


In  cases  where  the  act  of  bankruptcy  insisted  on  is  a  fraudu- 
lent transfer,  which  is  not  capable  of  being  proved  by  any  sin- 
gle incident,  but  depends  on  the  situation  of  the  bankrupt, 
and  his  conduct  and  language,  with  reference  to  the  whole 
transaction  ;  a  considerable  interval  may  frequently  elapse  be- 
tween the  date  of  a  disputed  act  of  bankruptcy,  and  that  of 
the  declarations  calculated  to  explain  it.  In  the  case  of  Rid- 
ley V.  Gydc,  (6)  a  conversation  with  a  bankrupt  was,  under 
the  peculiar  circumstances  of  the  case,  allowed  to  be  given  in 
evidence,  which  had  passed  twenty-six  days  after  the  dispu- 
[  *210  ]  ted  act  of  bankruptcy,  which  was  a  *fraudulent  transfer.  And, 
in  cases  of  continuing  acts  of  bankruptcy,  as  departing  the 
realm,  or  remaining  abroad  with  intent  to  defeat  or  delay  cred- 
itors, letters  or  declarations  may  be  received  during  the  con- 
tinuance of  the  act  of  bankruptcy,  and  long  after  the  com- 
mencement of  it.  Thus,  in  Raivson  v.  Haigh,  ( 1 )  where 
the  alleged  act  of  bankruptcy  consisted  in  departing  the  realm, 
with  intent  to  delay  creditors,  two  letters  were  received,  one 
sent  from  Calais,  and  the  other  from  Paris,  the  latter  having 
been  written  upwards  of  a  month  after  the  time  of  the  bank- 
rupt quitting  England. 

The  declarations  or  letters  must  be  connected  with  the 
state  of  the  party's  mind  at  the  time  ;  (2)  and  in  a  case,  where 
there  was  no  evidence  as  to  the  time,  when  declarations  ex- 
planatory of  an  act  of  bankruptcy  v/ere  made,  they  were  re- 
jected. (3) 

Another  well  known  example  of  evidence  admissible  as  part 
of  the  res  gestce,  is  supplied  in  the  instance  of  prosecutions  in- 
volving a  charge  of  conspiracy.  It  is  an  established  rule, 
that  where  several  persons  are  proved  to  have  combined  to- 
gether for  the  same  illegal  purpose,  any  act  done  by  one  of 
the  party  in  pursuance  of  the  original  concerted  plan,  and 
with  reference  to  the  common  object,  is,  in  the  contemplation 
of  law,  the  act  of  the  whole  party.  (4)  (a)  It  follows,  that  any 


Declara- 
tions loo  re- 
mote. 


Declara- 
tionsof  con 
spirators. 


(6)  9  Bing.  349.  Mr.  J.  Park  relied 
much  on  an  intervening  crrcnmstance  of 
a  fraudulent  transfer  between  the  decla- 
ration and  the  act  of  which  the  bankrupt, 
at  the  time  of  the  declaration,  falsely 
professed  a  total  ignorance. 

(1)  2  Bing.  99.  Accordingly,  decla- 
rations which  might  be  in  admissible, from 
tlieir  remoteness,  to  explain  an  act  of  de- 
parture from  the  dwelling-house,  may  in 
some  cases,  be  competent  to  explain  the 
continuing  act  of  "  absenting." 

(2)  See  observations  of  the  Court  in 
Rawson  n.  Hai»h,  2  Bins.  99. 


(3)  Marsh  r.  Meager,  2  Stark.  C.  353. 
And  see  Kohson  v.  Kemp,  4  Esp.  233. 
In  Lees  v.  Marston,  1  Mo.  &  Ro.  210, 
Parke,  J.,  held  that  a  statement  of  a 
bankrupt  could  not  be  received,  unless  it 
could  be  proved  to  have  been  made 
whilst  he  was  absenting  himself,  or  im- 
mediately on  his  return.  This  authority 
was  cited  in  Smith  v.  Cramer,!  Bing.  M. 
C.  585, avpra. 

(4)  Charge  of  Mr.  J.  Bailey  in  Wat- 
son's case,  32  St.  Tr.  7,  Brandreth's 
case,  32  St.  Tr.  854,  857.  Rex  v.  Sal- 
tar,  5  Esp.  125.  Re.x  v  Cope,  I  Str.  144. 


(a)  Commonwealth  v.  Crowninshield,  10  Pick.  497;  id.  477.     The  subject  was 
tnuch  considered  in  these  cases;  and  the  doctrine   in  the  text  confirmed. 


lure  of  acts. 


Sect.  l.J  Original  anil  Hearsay.  195 

writings  or  verbal  expressions,    being  acts  in  themselves,  or 

accompanying  and  explaining  other  acts,  and  therefore  part  of 

the  res  gestae,  and  which  are  brought  home  to  one  conspirator, 

are  evidence  Against  the  other  conspirators,  provided  it  suffi-  [  *211  ] 

ciently  appear  that    they  were  used  in  the    furtherance    of  a 

common  design.  (1)  (a) 

In  Stone's  case,  the  prisoner  was  indicted  for  treason,  and  in  the^na- 
was  charged  with  conspiracy,  together  with  a  person  of  the 
name  of  Jackson,  to  collect  and  communicate  intelligence  to 
the  French  government.  After  evidence  had  been  given  of 
a  conspiracy  for  this  purpose,  a  letter  written  by  Jackson,  con- 
taining treasonable  information,  and  which  had  been  intercep- 
ted, was  received  in  evidence  against  the  prisoner.  (2)  Upon 
the  same  principle,  in  Hai'difs  case,  a  letter  written  by  the 
chairman  of  a  meeting  in  London  to  a  delegate  sent  by  that 
meeting  into  Scotland,  was  received  in  evidence  ;  the  letter  con- 
In  such  cases  it  is  necessary,  that  in  the  ces  ;  sucii  as  whether  the  prisoner  was 
opinion  of  the  judge,  there  should  be  giv-  attending  to  the  conversation;  whether 
en,  at  some  period  of  the  trial,  sutficient  he  approved  or  disapproved.  By  Eyre, 
evidence  to  go  to  the  jury  of  concert  and  C.  J.,  ib.  Stone's  case,  6  T.  11.  .527. 
connection  on  the  part  of  tiie  prisoner.         Rex  v.  Saher,  5  Esp.  125. 

(1)  Hardy's  case,  24  St.  Tr.  794.  (2)  Ilex  «.  Stone,  6  T.  R.  627.  1 
What  the  effect  of  such  evidence  will  be.  East's  P.  C.  97.  25  Howell's  St.  Tr. 
must  depend  on  a  variety  of  circuinstan-     1311.  S.  C. 

On  a  trial  of  a  prisoner  for  murder,  his  declarations  before  the  fact  are  admissible 
to  discover  the  quo  ardino  the  act  was  committed.     2  Maryland,  120. 

Where  two  or  more  are  associated  together  for  the  same  illegal  purpose,  any  act 
or  declaration  of  the  parties,  are  evidence  against  the  others  ;  2  Pet.  C.  C.  R. 
365;  yet,  before  such  evidence  is  admitted,  the  court  must  decide  for  itself,  that 
there  is  sufficient  prima  facie  evidence,  which  the  jury  may  nevertheless  negative. 
5  Rand.  301. 

The  conspiracy  may  be  inferred  from  circumstances.  7  Cowen,  445.  See  2 
Day's  R.  209.  Whatever  is  done  in  pursuance  of  a  fraudulent  combination,  by 
any  of  the  parties  concerned  in  it,  may  be  averred  to  be  the  act  of  all.  Thus  in 
Tappan  v.  Powers  and  others,  2  Hall,  277,  Held,  that  the  declaration  was  good, 
although  it  charged  that  some  of  the  acts  of  the  conspiracy  were  done  by  all  the 
defendants,  and  other  acts  by  only  a  part  of  them,  but  all  in  pursuance  of  the  orig- 
inal combination.  "  It  cannot  be  doubted,  that  if  the  declaration  had  averred, 
that  all  the  defendants  used  the  fraudulent  means  of  obtaining  the  plainliir's  prop- 
erty, which  are  charged  against  L.,  that  such  an  averment  would  be  supported  by 
proof,  that  they  were  used  by  him  in  pursuance  of  a  plan  concerted  among  them 
all  ;  and  it  seems  to  me  equally  clear,  that  where  the  declaration  sets  forth  the  con- 
spiracy, the  act  of  each  defendant,  done  in  furtherance  of  its  objeci*,  niay  he  stated 
to  be  done  individually;  and  that  such  act,  in  judgment  of  !l;w,  is  v;  '  :i.:;  of  iiil." — 
id— Oakley.  See  also  Jones  ».  I3aker,  7  Cowen,  443;  2  Day's  R.  205;  and  3 
Pick.  33. 

(a)  See  10  Pick.  497;  id.  477. 

The  gist  of  a  conspiracy  is  the  unlawful  confederacy  to  do  an  unlawful  act,  or 
even  a  lawful  act  for  unlawful  purposes.  The  otience  is  complete,  when  the  con- 
federacy is  made,  and  any  act  done  in  pursuance  of  it  is  no  constituent  part  of  the 
ofTence,  but  merely  an  aggravation  of  it.  The  rule  of  the  common  law  is  to  pre- 
vent unlawful  combinations.     I'er  Parsons,  2  Mass.  333. 

When  the  intent  of  one  to  defraud  is  proved,  and  another  is  proved  to  have 
been  an  associate  in  going  with  him  and  being  present  at  the  time  and  place  the 
fraud  was  committed,  the  jury  may  inf(;r  that  he  was  privy  to  the  fraud,  unless  he 
givfi  evidence  to  explain  his  connection  with  him.     6  id.  74. 


196  Hearsay  Evidence.  [Ch.   12. 

tuiiiing  encouragement  to  that  delegate  to  proceed  in  the  cause 
in  which  he  had  been  engaged  by  the  direction  of  the  meet- 
ing in  London  ;  and  that  meeting  being  composed,  amongst 
others,  of  the  prisoner,  the  writer  of  the  letter,  and  the  person 
to  whom  it  was  addressed.  (3)  And  in  the  same  case,  (4)  ev- 
idence was  admitted  to  prove,  tliat  Thelwall  (who  was  a 
member  of  the  Corresponding  Society  with  the  prisoner)  had 
brought  a  paper  with  him  to  a  printer,  and  desired  him  to 
print  it  ;  the  paper  being  considered  as  evidence  to  prove  a 
circumstance  in  the  conspiracy.  In  like  manner,  consvdta- 
tions  in  furtherance  of  a  conspiracy  are  receivable  in  evi- 
dence, (5)  as  also  letters  or  drafts  of  answers  to  letters,  and 
other  papers  found  in  the  possession  of  co-conspirators,  and 
which  the  jury  may  not  unreasonably  conclude  were  written 
in  prosecution  of  a  common  purpose  to  which  the  prisoner 
f  *212  I  "^v^s  a  party,  (G)  These  are  examples  *of  acts  done,  and,  al- 
though the  material  part  of  the  acts  were,  in  their  nature,  on- 
ly proveable  by  hearsay,  yet  the  evidence  in  such  cases  was 
original  in  its  nature. 
Part  of  re*  For  the  same  reason,  declarations  or  writings  explanatory 
gesue.  ^£  ^YxQ  nature  of  a  common  object,  in  which  the  prisoner  is  en- 
gaged together  with  others,  are  receivable  in  evidence  ;  pro- 
vided they  accompany  acts  done  in  the  prosecution  of  such  an 
object,  arising  naturally  out  of  these  acts,  and  not  being  in  the 
nature  of  a  subsequent  statement  or  confession  of  them.  Up- 
on this  principle,  (namely,  that  the  evidence  offered  is  part  of 
the  transaction,)  in  the  case  oi  Damaree  for  high  treason,  the 
expressions  of  the  mob,  in  the  Sacheverell  riots,  that  they  de- 
signed to  pull  down  the  meeting  houses,  were  admitted  in 
evidence.  (1)  And  the  same  kind  of  evidence  was  received 
in  Lord  George  Gordon'' s  case,  (2)  and  on  the  same  principle, 
the  hissing  of  a  mob,  their  declarations,  and  inscriptions  upon 
banners  have  been  held  to  be  admissible,  as  original  evi- 
dence. (3) 

(3)  Hardy's  ease,  24  St.  Tr.  704,  in  Thelvvall'g  possession.  And  see  tlia 
The  scruple  of  Eyre,  C.  J.,  in  conse-  point  respecting  letters  found  in  the  pos- 
quence  of  the  letter  never  having  reached  session  of  co-conspirators  in  Watson's 
its  destination,  does  not  appear  to    have  case,  infra. 

any  weight.  (1)15  lloweH's  St.  Tr.  552. 

(4)  24St.  Tr,  199.  (2)  21    Howell's   St.  Tr.    542.    The 

(5)  Lord  Russell's  case,  9  St.  Tr.  578  ;  «ry  of  "No  Popery."  See  also  ia 
cited  in  Hardy's  case.  Hardy's  trial,    the    declaration  of  Thel- 

(6)  la  Home  Tooke's  case,  25  St.  wall,  accompanying  the  blowing  off  of 
Tr.  220      The  draft  of  a  letter  intended  the  head  of  a  pot  of  porter. 

to  liave  been  sent  hy  Hardy,  as  secretary  (3)   Ke.x    v.    Hunt,  3    B.  &   A,    666, 

to  the  Corresponding  Society,  in  answer  Redford  v.  Birley,  3  Stark.  C.  76.     Es- 

to  another  letter,  and    whicli  was    found  pecialiy    declarations   shewing  that   the 

in   Hardy's     possession,    was   admitted,  purpose  of   the    meetings   at   night   was 

And  in  the  same  trial,  another  letter  was  that    of   being    drilled.       A     point    was 

admitted,  which  was  written  by    the  sec-  raised  as  to  the  evidence  of  inscriptions 

retary  of  a  society  at  Sheffield,  and  was  on  banners,  being  the  best  evidence  ;  as 

iSlddrfisaad  to  the  prisoner,  but  was  found  to  which,  see  the  chapter  on   secondary 


Sect.   1.]  Original  and  Ilcarsaij.  197 

But  wliere  wordsor  writings  are  not  acts  in  themselves,  nor  Subsequnnt 

<^  i,    .        stalemeiils 

part  of  the  res  gestm,  but  a  mere  relation  of  some  part  of  the  of  conspira- 
transaction,  or  as  to  the  share  with  which  other  persons  have  *"'*• 
had  in  the  execution  of  a  common  design,  the  evidence  is  not 
in  its  nature  original.  It  depends  on  the  credit  of  the  narra- 
tor, who  is  not  before  the  Court,  and  therefore  it  cannot  be  [  *213  ] 
received.  Thus  on  the  trial  of  Hardy  for  high  treason,  (4)  j^^'^j"";^ 
a  question  *arose  as  to  the  admissibility  of  a  letter  written  by  case. 
Thel wall, and  sent  to  a  third  person  not  connected  with  the  con- 
spiracy, containing  seditious  songs,  which  the  letter  stated  to 
have  been  composed  and  sung  at  the  anniversary  meeting  of 
the  London  Corresponding  Society,  of  which  society  the  pris- 
oner and  the  writer  of  the  letter  were  proved  to  be  members. 
The  argument  in  favour  of  the  evidence  was,  that  the  letter 
was  an  act  done  in  furtherance  of  the  conspiracy  ;  that  the 
letter  contained  language  of  incitement,  and  not  merely 
narrative  or  confession  by  a  stranger,  in  which  case  "  scribere 
est  agere."  The  objection  was,  that  the  letter  contained 
merely  a  relation  by  the  writer,  that  certain  songs  had  been 
sung,  which  could  not  be  evidence  against  the  prisoner.  The 
majority  of  the  Court  decided  against  the  admissibility  of  the 
letter.  The  Lord  Chief  Justice  Eyre,  the  Lord  Chief  Baron 
Macdonald,  and  Mr.  Baron  Hotham  were  of  opinion, that  the 
letter  could  not  be  received.  Mr.  Justice  Buller  (with  whom 
Mr.  Justice  Grose  agreed,  in  thinking  it  admissible,)  said,  the 
letter  ought  to  be  received  in  evidence,  for  the  purpose  of 
showing  what  was  the  nature  and  extent  of  the  conspiracy  ; 
that  in  Damaree^s  and  Purchasers  cases,  evidence  was  re- 
ceived of  what  some  of  the  parties  had  done,  when  the  priso- 
ner was  not  there  ;  that,  on  the  trial  of  Lord  Southampton, 
something  said  by  Lord  Essex,  previous  to  the  prisoner's  being 
there,was  admitted  as  evidence  ;  and  that,  in  Lord  George  Gor- 
don''s  case,  evidence  of  what  diiferent  persons  of  the  mob  had 
said,  though  he  was  not  there,  had  been  admitted.  But  the  Lord 
Chief  Justice  Eyre,  and  the  other  judges,  considered  the  let- 
ter, not  as  an  act  done  in  prosecution  of  the  plot,  but  as  a  mere 
narrative  of  what  had  passed.  "  Correspondence,"  said  the 
Chief  Justice,  "  very  often  makes  a  part  of  the  transaction, 
and  in  that  case  the  correspondence  of  one  who  is  a  party  in 
a  conspiracy  would  undoubtedly  be  evidence,  that  is,  a  cor- 
respondence in  furtherance  of  the  plot ;  but  a  correspondence 
of  a  private  nature,  a  mere  relation  of  what  had  been  done, 
.appears  a  different  thing."     And  with  respect  to  the  cases  al- 

<evidence.  A  point  occurring  on  tlie  same  of  the  present  work  which  treats  of  the 

trial,   as  to    the  adminiiljihty  of  resolu-  relevancy  of  proofs.     And  see  liurdelt  v. 

iions  at  a  former  meeting,    aeerna  to  de-  Coltnan,  14  East.   183. 
ipend  rather  upon  the  doctrine  of  admis-  (4)  24  Howell's  St.  Tr.    4.'j2,    475, 

fions,  and  properly  to  belong  to  that  part  See  32  lloweH's  St.  Tr.  351. 


198  Hearsay  Evidence.  [Chap.  12. 

hided  to  by  Mr.  Justice  BuUer,  the  Chief  Justice  observed, 
''  111  the  cases  oi  Daniaree  and  Lord  George  Gordon,  the  cry 
[  *214  ]  of  the  mob  at  the  *tiine  made  a  part  of  the  fact,  part  of  the 
transaction,  and  therefore  such  evidence  might  properly  be  re- 
ceived." 

On  the  same  trial  numerous  letters  written  by  co-conspira- 
tors were  read,  and  a  hymn,  and  a  prayer,  and  tracts,  as  one 
called  "  The  Rights  of  Swine,"  and  toasts,  as  one  "  the  lamp- 
iron  at  the  end  of  Parliament-street,"  were  received  in  evi- 
dence ;  being  in  the  nature  of  verbal  acts,  for  which  the  pris- 
oner, though  not  personally  present  when  they  were  spoken, 
written,  or  published,  was  nevertheless  responsible. 
Writings  ill  It  is  ill  cousequence  of  the  distinction  between  writings  or 
possession    declarations  which  are  acts,  or  part  of  the  res  gestce,  and  such 

ot  coiispira-  t         r  a  i 

tors,  before  as  are  HI  the  nature  of  subsequent  statements,  that  the  admis- 
apprehen-  sibility  of  Writings  often  depends  on  the  time  when  they  are 
sion.  proved  to  have    been  in  the    possession  of  co-conspirators ; 

whether  it  were  before  or  after  the  time  of  the  prisoner's  ap- 
prehension. Thus  in  tlie  trial  of  Watson,  (l)some  papers, 
containing  a  variety  of  plans  and  lists  of  names,  which  had 
been  found  in  the  house  of  a  co-conspirator,  and  which  had 
a  reference  to  the  design  of  the  conspiracy,  and  in  furtherance 
of  the  alleged  plot,  were  held  to  be  admissible  evidence 
against  the  prisoner.  All  the  judges  were  of  opinion  that  these 
papers  ought  to  be  received ;  inasmuch  as  there  was  in  the 
case  strong  presumptive  evidence,  that  they  were  in  the  house 
of  the  co-conspirator  before  the  prisoner's  apprehension  ;  for 
the  room  in  which  the  papers  were  found  had  been  locked  up 
by  one  of  the  conspirators.  And  the  judges  distinguished 
the  point  in  this  case  from  a  point  cited  from  Hardy^s  case, 
where  the  papers  were  found  after  the  prisoner's  apprehen- 
sion in  the  possession  of  persons,  who,  possibly,  might  not 
have  obtained  the  papers  till  afterwards.  (2) 
Deciara-  *The  principal  decisions  respecting    writings  and  declara- 

oiers  °'  "     tions  used  by  conspirators  have  been  pronounced  on  the  ceca- 
ls *215  ]  sion  of  trials  for  high  treason  ;  bu^  similar  evidence  has  been 
frequently  given  upon  prosecutions  for  conspiracy  merely,  for 
riot,   and,    generally,   for  otfences    perpetrated   by  confeder- 
ates. (1)     And  the  principles  upon  which  such  evidence  is  ad- 

(1)  32  How.  St.  Tr.  348,  356.  2  doubted  whether  it  had  been  clearly 
Stark.  C.  140.  A  sketch  of  a  machine  proved  that  the  paper  in  question  was 
with  scythes,  to  act  against  cavalry,  and  intended  to  be  used  in  furtherance  of  the 
a  plan  of  the  Tower  of  London,  were  common  purpose. 

given  in  evidence.  (1)    Such  evidence   was   repeatedly 

(2)  And  see  a  point  as  to  the  inad-  given  upon  the  trials  under  the  Notting- 
missibility  of  a  paper  containing  ques-  ham  Special  Commission,  A.  D.  1832, 
tions  and  answers  calculated  to  excite  on  prosecutions  for  demolishing  a  mill, 
mutiny  in  the  army.  Where  it  was  and  for  arson  ;  the  offences  having  been 
held  that  the  question  of  publication  committed  by  a  riotous  mob.  Also  in 
was  irrelevant  to  the  inquiry  ;  but  it  was  actions  against  the  hundred  arising  out  of 


Sect.  1.]  Original  and  Hearsay.  199 

mitted,  are  equally  applicable  to  the  trial   of  civil  injuries,  in  ^."'^''ac- 
the   commission  of  which  different    defendants  have  concur- 
red. (2) 

But  evidence  of  this  description  is  inadmissible  in  actions  Common 
where  no  common  motives  or  object  can  be  imputed,  as  in  ac-  *'"' ' 
tions  for  negligence  ;  (3)  at  least,  it  ought  not  to  afiect  co-de- 
fendants, Avhere  such  a  consequence  can  be  avoided.  And  it 
would  seem,  that  the  principle  upon  which  the  declarations 
of  associates  are  admitted,  in  civil  actions,  not  less  than  in 
proceedings  upon  criminal  charges,  only  applies  where  such 
declarations  are  strictly  part  of  the  transaction  in  question.  (4) 

In  the  case  of  Pyke  v.  Crouc/i,  (5)  a  letter  written  by  a 
stranger  to  t?ie  suit,  acknowledging  the  receipt  of  a  will,  was 
admitted  as  evidence,  to  show  that  such  a  will  had  beeri  sent 
by  *the  testator,  on  the  ground  that  the  sending  of  the  ac-  [  *216  ] 
knowledgement  was  a  contemporary  act.  But  it  would  seem, 
that  it  was  not  proper  evidence  to  establish  the  fact  of  receiv- 
ing the  will,  though  it  would  be  available  to  explain  that  fact, 
if  proved  to  have  been  written  at  the  time. 

It  is  to  be  observed,  that  declarations,  though  accompanied  Expressions 
by  acts,  are  not  admissible  as  being  part  of  a  transaction,  un- 
less when  they  explain  the  nature  of  the  acts  themselves.  (1) 
This  is  a  distinction  of  some  nicety.  Where  a  prisoner  was 
charged  with  stealing  a  guinea,  and  the  prosecutor  had  told 
him  that  it  would  be  better  to  confess,  some  judges  seem  to 
have  thought  it  allowable  to  prove,  that  the  prisoner  gave  up 
the  guinea  to  the  prosecutor  as  the  guinea  that  had  been  sto- 
len from  him.  (2)  (a) 

the  same   disturbances.     The  like   evi-  defendants  in  trespass,  will  not  establisli 

<lence  is  often  given  in  cases   of  confed-  otiiers  to  be  co-trespassers  ;  yet  if  tliatis 

eracies  for  uttering  counterfeit  coin.  And  proved    by    other   competent    evidence, 

■on    trials  for    felonies  of  various   kinds,  the  declaration  of  one  as  to    the  motives 

involving  a   charge  of  conspiracy.     See  and  circumstances  of  the  trespass,    will 

6  T.  R.  528.  be  evidence  against  ail  who   are  proved 

(2)  Per  Lord  Eilenborough,  Rex  v.  to  have  combined  together  for  the  com- 
Hardwicke,  11  East,  5S5.  See  Powell  nion  object."  In  Wright  v.  Court,  2  C. 
V.  Hodgetts,  2  C.  &  P.  432.  North  v.  &  P.  232,  Garrow,  B.,  admitted  the  de- 
Miles,  1  Camp.  3S9.  Bowsher  I'.  Cal-  claration  of  a  co-trespasser  as  to  common 
ly,  1  Camp.  391.  In  civil  actions,  the  motives,  in  an  action  for  false  imprison- 
question  has  commonly  turned  upon  the  ment  made  five  weeks  after  tlie  injury 
point,  whether  the  e.xpressions  of  agents  complained  of ;  he  was  a  defendant  on 
were  admissible  against  their  principals.  the    record,  and  had  not   sullered  judg- 

(3)  Daniels  v.  Potter,  1  i\I.  &  M.  501 .  ment  by  default. 

The  statement  was  received  as  against  (5)  Ld.  Raym.   730. 

the  person   making  it,  who   had  sutlered  (1)  See  observation  of  Lord  Ellenbor- 

judgment  by  default.  ough    in    Aveson    v.  Lord    Kinnaird,    fi 

(4)  In   Rex   d.  Ilardvvicke,   11    East,  East,  193,  as  to  a  collateral  declaration 
585,  the  rule  is  incidentally  laid  down  by  by    a    wife    on    quitting   her    husband's 
Lord  Eilenborough,  but  apparently  with-  house,  and  Evans's  i'othier,  vol.  2,  287, 
out    proper  limiialions  :  he  says,    "  al-  and  R.  v.  Clarke,  2  Stark,  svpra. 
though  an    admission  by    one  of  several  (2)  Yl.  v.  Griffin,  R.  k.  R.  151.  There 

(a)  Where  the  prisoner  was  informed  by  his  brother  P.  that  Joseph,  another 
brother  indicted,  had  concluded  to  confess,  and  that  he  wished  to  procure  the  pris- 


200  Hearsay  Evidence.  [Ch.   12. 

In  the  various  instances  which  have  heen  considered  in  the 
present  section,  where  evidence  of  words  or  writings  has  been 
achiiitted,  it  is  obvious  that,  as  regards  the  evidence  of  words, 
it  is  Hable  to  greater  mistake  and  misrepresentation  than  at- 
taches to  the  evidence  of  facts.  But  this  objection  can  be  no 
ground  for  precluding  inquiry  into  sucli  transactions,  as  con- 
sist of  expressions  that  have  been  used.  And  even  where 
the  expressions  deposed  to  are  explanatory  merely  of  acts  or 
conduct,  it  is  to  be  observed,  that  this  usually  occurs  when 
the  matter  in  dispute  could  not  be  proved  otherwise,  than  by 
the  statement  of  a  suspicious  or  incompetent  witness  concern- 
ing his  inward  feelings  or  intentions  at  a  prior  time.  And  fur- 
ther, the  expressions  given  in  evidence  are  limited  to  a  period, 
when  their  probability  and  gcmiineness  are  capable  of  being 
tested  by  circumstances  in  their  nature  not  liable  to  be  mis- 
understood or  perverted. 

[  *217  ]  *SectioxN  II. 

Of  the  Exclusion  of  Hearsay  Evidence. 

Hearsay  The  technical  meaning  of  the  term  hearsay  evidence  hav- 

excuei.  ing  been  explained  in  the  preceding  section,  it  remains  to 
state,  that  the  general  rule  of  evidence  is,  (and  it  is  a  rule  of 
very  extensive  influence  in  the  law,)  that  hearsay  reports  of 
transactions,  whether  verbal  or  in  writing,  given  by  persons 
not  produced  as  witnesses,  are  not  receivable. 
Policy  of  ^\\Q  principle  of  the  rule,    according  to  which   evidence  is 

Ilia    riilo  i  i  JO 

rejected  on  the  ground  of  its  being  hearsay,  is  that  such  evi- 
dence requires  credit  to  be  attached  to  a  statement  made  by 
a  person,  Avho  is  not  subjected  to  the  ordinary  tests  enjoined 
by  the  law  for  ascertaining  the  correctness  and   completeness 

was  a  difTerence  of  opinion    among    the  idence  of  what  the    plaintiff  said    upon 

judges,  and  the  decision  appears  question-  delivering  a  chattel,  as  to  the  terms  upon 

able,     vide    infra.     Confessions.     In  wiiich    tlie    piaintiO'    had    received     it. 

llayslep  v.  Gymer,  1  Ad.  &  Ell.  162,  it  There  was  another  groand.  vide  infra, 

seems  to  have    been  thought   admissible  Admissions.     And   see    R.  v.    Foster, 

to  prove  property  in  the  plaintiff,  by  ev-  6  C.  &  1'.  325,  supra. 

oner's  consent,  which  P.  advised  him  to  yield  ;  encouraging  him  wilh  the  hope  of 
a  pardon,  if  he  should  be  convicted  :  Ileld,  that  after  such  encouragement,  the 
consent  of  the  prisoner  to  this  arrangement,  cannot  be  given  in  evidence  against 
him.  Commonwealth  v.  Knapp,  9  Pick.  497;  10  id.  477.  The  slightest  influence 
is  sufficient  to  exclude  the  confessions.  And  though  the  consent  of  the  pris- 
oner to  the  proposal  of  P.  was  not  strictly  speaking  a  confession,  nor  a  direct 
admission  of  his  own  guilt  ;  but  in  relation  to  the  rules  of  evidence,  it  is  equiva- 
lent, id. 

And  if  the  prisoner's  assent  to  P's.  proposal  would  be  evidence  against  him,  and 
is  excluded,  because  it  was  improperly  procured,  then  his  subsequent  confession 
ought  to  be  excluded  also  ; — for  the  rule  is  that  when  a  confession  has  been  im- 
properly obtained,  all  subsequent  confessions  are  inadmissible  ;  although  made  at 
different  times  and  to  different  persons,    id.     See  4  Hals.  163;  5  id.  163. 


the  rule. 


Sect.  2.]  Original  and  Hearsay.  201 

of  testimony  : — the  author  of  the  statement  not  delivering  his 
evidence  or  being  interrogated  in  the  presence  of  a  Court  of 
Justice,  and  not  speaking  under  the  moral  and  poHtical  sanc- 
tions of  an  oath;  his  character  and  motives  not  being  inves- 
tigated, his  deportment  not  being  observed.  It  may  be  fur- 
ther remarked,  that  other  objections  apply  to  this  species  of 
evidence,  which  are  equally  applicable  to  evidence  of  oral 
matters  in  general,  and  which  seem  to  render  the  application 
of  the  tests  referred  to  peculiarly  necessary.  Such  evidence 
is  very  liable  to  be  fallacious,  from  the  facilty  by  which  it 
may  have  been  imperfectly  heard,  or  may  have  been  misun- 
derstood, or  inaccurately  remembered,  or  may  have  been  pur- 
verted  or  altogether  fabricated.  It  is  to  be  observed  also, 
that  persons  communicating  such  evidence  are  not  subject  to 
the  danger  of  a  prosecution  for  perjury  (in  which  a  contradic- 
tion by  two  witnesses  is  requisite);  for  where  the  hearsay 
statement  is  stated  to  have  been  made  when  no  third  person 
was  present,  or  purports  to  be  that  of  a  deceased  person,  the 
witness  has  no  cause  to  be  apprehensive  of  punishment,  even 
though  he  entirely  fabricates  it. 

*"  With  reference  to  the  necessity  of  an  oath  or  affirmation,"  [  *218  ] 
says  Mr.  Justice  Duller,  "  no  evidence  is  to  be  admitted  but 
what  is  upon  oath.  And  if  the  first  speech  was  without  oath, 
another  oath  that  there  was  such  a  speech,  makes  it  no  more 
than  a  bare  speaking,  and  so  of  no  value  in  a  Court  of  Jus- 
tice." (1)  The  misconstructions  to  which  evidence  of  oral 
matters  is  subject  from  the  ignorance  or  inattention  of  hearers, 
or  from  criminal  motives,  are  powerfully  adverted  to  by  Mr. 
Justice  Foster  in  his  treatise  on  the  Laws  of  Treason.  (2) 

With  respect  to  the  statements  of  persons  not  produced  as 
witnesses,  but  who  might  be  produced,  there  are  the  same 
reasons  for  the  exclusion  of  the  evidence  as  exist  for  the  re- 
jection of  secondary  evidence,  where  that  of  a  superior  de- 
scription is  attainable.  But  where  a  person,  who  has  related  a 
particular  fact  (whether  casually  or  upon  oath,  and  in  a  judi- 
cial proceeding,)  is  dead,  or  for  some  good  cause  cannot  be 
jiroduced,  additional  and  strong  reasons  are  required  to  justify 
the  exclusion  of  the  evidence. 

For  the  reasons  which  have  been  stated,  it  may  be  thought, 
that  in  the  great  majority  of  cases  where    hearsay  evidence         ,, ; 
might  be  tendered,  it  would  not  enable   juries  to  arrive  at  a     ^" 
safe  conclusion  upon  the  matters  submitted  to  them.      Unless 
it  were  clear  that  the  discovery  of  truth  would  be   raaterjaJXy  ' 
promoted  by  the  admission  of  such  evidence,  the  inconvenien- 
ces in  regard  to  the  expense  to  be  incurred  by  the    opposite 

Cl)   r..  N.  p.  2!)i.     And  scp  pRrPay-     tcrdcri  in  Doe  v.  Kiiigway,  4  15.  &  Aid. 
ley    jirul    I  itilediili!,    .1.,    in    Sp:ir<;o    v.     t>ij. 
lii'oun.  '■)  li.  &,  C.  938.     Per  I>'ord  Ten-         (2)   I'ost^r  on  Treasons,  200. 

2G 


202  Hearsay  Evidence.  [Ch.   12. 

party  who  would  have  lo  encounter  such  evidence,  in  regard 
also,  to  the  consumption  of  pubHc  time  which  its  production 
would  occasion,  ought  to  be  weighed  against  its  advantages. 
Besides,  the  exclusion  of  such  testimony  may  have  some  ben- 
eficial effect  in  many  instances,  by  obliging  parties  to  come 
furnished  with  evidence  from  other  less  exceptionable  sources, 
from  which  evidence  it  would  be  more  easy  to  draw  a  safe 
conclusion.  In  estimating  the  validity  of  these  reasons,  we 
[  *219  ]  must  take  into  consideration  the  motives  for  ^falsifying  judi- 
cial evidence,  and  the  limited  means  of  detecting  such  false- 
hood by  that  tribunal  to  which  the  constitution  entrusts  the 
determination  of  questions  of  fact  ;  regard  must  also  be  had 
to  the  persons  of  which  that  tribunal  is  composed,  and  to  the 
shortness  of  the  time  afforded  for  estimating  evidence  which 
tends  to  an  indefinite  extent,  which  produces  so  many  collat- 
eral questions,  and  which  requires  very  nice  discrimination  in 
those  who  are  to  decide  upon  it. 

It  will  probably  be  thought,  by  persons  acquainted  with  ju- 
dicial proceedings,  that  juries  do  not,  in  general,  properly  dis- 
criminate between  hearsay  and  original  evidence.  An  oppor- 
tunity of  noticing  this  frequently  occurs,  in  cases  relating  to 
the  various  exceptions  to  the  rule  of  exclusion  ;  and,  more  par- 
ticularly, where  hearsay  evidence  is  introduced  collaterally  ; 
as,  where  it  is  a  part  of  a  confession  of  one  prisoner  affecting 
another  prisoner,  or  where  it  is  contained  in  a  letter  which  is 
introduced  for  a  different  object,  or  where  it  consists  of  a 
statement  of  hearsay  matters  made  in  the  presence  of  a 
party  to  the  suit.  In  such  cases,  the  hearsay  evidence  gen- 
erally has  mucVi  too  strong  an  effect  upon  the  jury,  however 
the  Judge  may  caution  them  not  to  give  weight  to  the  evi- 
dence as  proving  the  truth  of  the  facts  therein  stated. 
History  of  The  rule  of  exclusion  under  consideration  is  not  of  great 
'"^'  antiquity  ;  so  late  as  the  year  1790,  it  does  not  appear  to  have 

been  settled  with  regard  to  depositions  taken  before  magis- 
trates, whether  upon  criminal  charges  or  upon  other  occa- 
sions ;  and,  as  will  appear  from  the  following  pages,  several 
of  the  exceptions  to  the  rule  of  exclusion  have  been  much 
narrowed  within  very  modern  times.  (1) 

Throughout  the  state-trials  before  the  time  of  the  Com- 
monwealth, the  worst  species  of  hearsay  was  constantly  re- 
ceived, consisting  of  the  examinations  of  persons  who  might 
have  been  produced  as  witnesses,  of  others  convicted  of  capi- 
[  *220  ]  tal  offences,  *and  of  others  who  had  signed  confessions  in  the 
presence  only  of  the  officers  of  government  and  under  the 
tortures  of  the  rack. 
Kaipiffii.  On  the  trial  of  Sir  Walter  Raleigh,   for  example,  the  only 

Stafford,      pjece  of  evidence  directly  affecting  Raleigh,  was  a  paper,  pur- 

(1)  One  of  the  earliest  cases  in  which     Yardly  Pascli.     10  Car.  &   Keb.  223, 
the  rule  was  acted    upon  is  Sampson  v,     p!.  71, 


Sect.  2.]  Exclusion  of  Hearsay  Evidence.  203 

porting  to  be  a  statement  by  a  third  person,  of  the  effect  and 
result  of  Lord  Cobham's  examination,  and  signed  by  him  un- 
der threats  of  the  Chief  Justice,  This  was  admitted,  as  the 
Chief  Justice  observed,  lest  there  should  be  "a  gap  opened 
for  the  destruction  of  the  King,"  though  Sir  W.  Raleigh  ur- 
ged, "  that  he  might  see  his  accuser  face  to  face  ;  and  if,  be- 
ing charged  on  his  soul,  Lord  Cobham  affirmed  the  matter  of 
the  examination,  he  consented  to  be  taken  to  be  guilty."  Tn 
like  manner,  on  Sir  R.  Throgmorton's  trial  the  principal  de- 
position had  been  taken  from  a  man,  who  had  been  convicted 
of  treason,  but  whose  execution  had  been  respited  several 
times,  in  order  to  induce  him  to  accuse    the  prisoner. 

Even  during  the  reign  of  Charles  the  Second,  though  the  Popish  plot, 
practice  of  reading  the  depositions  of  persons,  who  might 
have  been  produced  as  witnesses,  was  discontinued,  yet  hear- 
say evidence  was  allowed  in  many  cases,  in  which  it  would 
now  be  rejected.  On  the  trials  for  the  Popish  plot,  the  evi- 
dence consisted  principally  of  a  narrative  of  the  transactions 
of  the  supposed  conspirators  in  various  countries,  collected  du- 
ring a  long  period  of  time  from  a  multitude  of  letters,  the 
contents  of  which  were  given  from  recollection  ;  the  witnes- 
ses not  having  taken  a  note  of  any  part  of  the  letters  at  the 
time  of  reading,  not  having  read  them  for  a  great  number  of 
years,  nor  being  required  in  reading  to  notice  their  contents, 
and  not  producing  one  of  the  letters,  nor  a  copy,  nor  even  an 
extract. 

This  rule  applies,  although  the  account  has  been  given  up-  Extent  of 
on  oath,  and  in  the  course  of  a  judicial  proceeding  ;  as,  where  "^'■"^• 
a  pauper  has  been  examined  upon  oath   (unless  under  particu- 
lar statutes,)  by  magistrates,    respecting  his  parochial    settle- 
ment ;    (1)  *or  where  a   deposition  has  been  taken  by  magis-  r  #221  ] 
trates  upon   a  criminal   charge,    in   the  absence  of  a  priso- 
ner. (1) 

The  rule  applies  also,  notwithstanding  that  no  better  evi- 
dence is  to  be  found,  and  though  it  be  certain  that  if  the  ac- 
count is  rejected,  no^other  can  possibly  be  obtained  :  as,  where 
the  evidence  purports  to  be  the  narrative  of  an  eye-witness 
of  a  transaction,  and  that  witness  the  only  one,  and  he  since 
dead. 

Doubts  were  formerly  entertained,  whether  declarations  by  nedaraium 

■^         .,,  ,  .  .    ,  -^    ol   aiicsUiig 

an  attestmg  witness  to  a  will  or  other    instrument   might  not  witness. 
be  given  in  evidence  after    his  death,   to   show  that   he    had 
forged   or  fraudulently     altered  the   instrument.        It    was 

(1)  R.  r.  Nuneharii  Courtnny,  1  East,  R.  &,  R.  Cr.  (;.  3:39,  iW^  infra,  Whnre 

373.      R.  V.  I'erry  I'rystont;,  2  ICast,  r>l.  deposilioiH   before  iiinglstiaie.-;,    and  ilie 

R.   1).  Abetgwclly,    il).  (>3.     See    R.    v.  decisions  respectiin;  (lej)o>ilioiis  liefore  a 

Eriswell,  3'!'.  R.  72.5.  coiontir,  taken  in  lliR  ab>i;noe  of   a  piis- 

(l)  Hee  R.  »).  Crovvther,  1  T.  R.  12.'5.  oner,  are  more  particuliirly  considered. 
R.  V.  SiHith,  2  Stark.  2'J8.     Holt,  G14. 


204  Hearsay   Evidence.  [Ch.   12, 

suggested,  that  as  the  one  party  used  the  declaration  of  the 
subscribing  witness,  evidenced  by  his  signature,  to  prove  the 
execution,  the  defendant  might  use  any  declaration  of  the 
same  witness  to  disprove  it  ;  and  fnrther,  that  the  declaration 
was  a  substitute  for  the  loss  of  the  benefit  of  cross-examina- 
tion, which  might  have  been  had,  if  the  witness  had  been 
alive  and  examined.  But  in  the  case  of  Stohart  v.  Dry- 
den,  (2)  it  was  held  that  such  declarations  were  admissible  in 
evidence.  The  observations  of  the  Court  upon  the  inconve- 
nience, which  would  attend  the  adopting  of  an  exception  in 
such  a  case,  illustrate  the  general  expediency  of  the  rule.  It 
was  said,  that  "  the  rights  of  parties  under  wills  would  be  li- 
able to  be  affected  at  remote  periods  by  loose  declarations  of 
attesting  witnesses,  which  these  parties  would  have  no  oppor- 
tunity of  contradicting,  or  explaining  by  the  evidence  of  the 
witnesses  themselves."  The  party  impeaching  the  validity 
of  the  instruments  would,  it  is  true,  have  an  equivalent  for 
the  loss  of  his  power  of  cross-examining  the  living  witness : 
but  the  party  supporting  it,  would  have  none  for  the  loss  of 
his  power  of  re-examination." 


[  #222  ]  *CHAPTER  XIII. 

EXCEPTIONS  TO  THE  RULE  EXCLUDING   HEARSAY  EVIDENCE.       RE- 
LAXATION IN  THE  CASE  OF  PARTICULAR  SUBJECTS  OF  INQ,UIRY. 

It  is  obvious  that  the  objections  to  hearsay  evidence  do  not 
apply  with  the  same  force  to  every  species  of  it ;  and  that 
the  inconvenience  of  rejecting  it  must  be  greater  in  some 
kinds  of  inquiry  than  in  others.  Hence  the  Courts  have  es- 
tablished various  exceptions  to  the  rule  which  excludes  hear- 
say evidence.  The  expediency  of  this  rule  of  exclusion  can- 
not indeed  be  satisfactorily  judged  of,  without  taking  a  view 
of  such  exceptions.  For,  on  the  one  hand,  the  exceptions 
may  be  thought  to  obviate  many  objections  which  would  ex- 
ist, if  the  rule  were  unlimited  in  its  operation,  whilst,  on  the 
other,  they  have  occasioned  a  substantive  mischief  in  the 
mass  of  legal  decisions  arising  out  of  them, — decisions,  which 
present  many  subtle  distinctions,  and  not  unfrequently  con- 
flicting opinions  of  the  Courts.  It  will  also  probably  be 
thought  that,  in  some  instances,  the  rule  of  exclusion  has 
been  injudiciously  relaxed,  and  in  others,  that  it  has  been  un- 
necessarily maintained  in  its  full  strictness. 

It  is  proposed  to  treat  in  the  present  chapter  of  the  excep- 

(2)  1  M.  S:  W.  f)23.  In  which  case  hatioti  by  Lord  Ellenborough  and  Mr.  J. 
the  Jiulhority  of  Wright  v.  Lettler,  and  a  Bay  Icy,  are  examined,  vide  infra,  Dy- 
nisi  Julius  decision,  cited,    with  appro-     ing  Declarations. 


Sect.   1.]  Matters  of  Pedigree.  9M 

tions  to  hearsay,  which  have  been  made  in  regard  to  particu- 
lar subjects  of  inquiry.  The  first  section  will  treat  of  hear- 
say evidence  in  matters  of  pedigree,  and  the  second  of  hear- 
say evidence  in  matters  of  pubhc  right  or  pubhc  interest. 


*Section  1.  [  *223  ] 

Relaxation,  in  tlw  case  of  Pedigree,   of  the  Rule  which  ex- 
cludes Hearsay  Evidence. 

Hearsay  statements  of  deceased  persons  are  allowed  to  be  Hearsny 
received  in  matters  of  pedigree,  subject,  however  to  various  ""^ 
qualifications.  This  exception  appears  to  be  founded  on  the 
consideration,  that  the  facts  which  are  the  subject  of  inquiry 
are  frequently  of  an  ancient  date,  and  that  the  knowledge  of 
them  is  usually  confined  to  a  few  individuals.  By  limiting 
the  exception  to  the  statements  of  deceased  persons,  a  resort 
to  this  kind  of  evidence  is  precluded,  where  the  hearsay  ten- 
dered indicates  the  existence  of  more  satisfactory  proof,  and 
is  only  admitted  on  failure  of  the  ordinary  channels  of  infor- 
mation. According  to  the  qualifications  under  which  evidence 
of  pedigree  is  received,  provision  is  made  that  the  statement 
should  be  derived  from  a  person  who  would  be  likely  to  be 
well  informed  upon  the  subject  on  which  he  was  speaking, 
and  who  should  have  no  apparent  motive  for  perverting  the 
facts. 

The  exception  in  question  is  framed  upon  general  princi- 
ples adapted  to  circumstances  of  frequent  occurrence.  It  may 
happen,  that  these  principles  will  fail  of  application  in  many 
instances  to  which  the  exception  might  seem  to  extend.  The 
exception  is  not  confined  to  ancient  facts,  but  extends  also  to 
matters  of  pedigree  which  have  recently  transpired  ;  and  the 
hearsay  of  deceased  witnesses  is  admitted  as  to  facts,  which 
occurred  in  the  presence  of  many  living  witnesses. 

*'  It  would  be  impossible,"  says  Lord  Erskine,  "to  prove 
descents  according  to  the  strict  rules,  by  which  contracts  are 
established,  and  rights  of  property  regulated,  requiring  the 
facts  from  the  mouth  of  the  witness  who  had  the  knowledge 
of  *them."(l)  "  On  inquiring  into  the  truth  of  facts  which  [  *224  ] 
happened  a  long  time  ago,"  says  Mr.  Justice  Le  Blanc,  (2) 
"  the  Courts  have  varied  from  the  strict  rule  of  evidence  appli- 
cable to  facts  of  the  same  description  happening  in  modern 
times,  because  of  the  difficulty  or  impossibility,  by  lapse  of 
time,  of  proving  those  facts  in  the  ordinary  way  by  living 
witnesses."      On  this  ground  hearsay  and  reputation  (which 

(1)  1.3Ves.  143.     And  see   by  Best,         (2)  10  East,  119. 
C.  J.,  9  B.  Moore,  188. 


206  Hearsay  Evidence.  [Ch.   13. 

latter  is  no  other  than  the  hearsay  of  those  who  may  be  sup- 
posed to  be  acquainted  with  the  fact  handed  down  from  one 
to  another)  have  been  admitted  as  evidence  in  particular  ca- 
ses. On  that  ])rinciple  stands  the  evidence  in  cases  of  pedi- 
gree, of  declarations  of  the  family  who  are  dead,  and  of  mon- 
umental inscriptions,  or  of  entries  made  by  them  in  family 
Bibles.  Such  evidence,  observes  Lord  Eldon,  in  Whitelock 
V.  Baker,  (3)  is  admitted  on  the  principle,  that  it  is  the  nat- 
ural etfusion  of  a  ])arty  who  must  know  the  truth,  and  who 
speaks  upon  an  occasion  where  he  stands  in  an  even  position, 
without  any  temptation  to  exceed  or  fall  short  of  the  truth,  (a) 
It  will  be  convenient,  in  the  present  section,  to  consider  in 
order, 

1.  What  are  matters  of  Pedigree. 

2.  The  different  forms   of  Hearsay  Evidence  in  cases  of 

Pedigree. 

3.  The  qualifications   under  which   Hearsay  Evidence  is 

received  in  cases  of  Pedigree. 
Pedigree,         First,  Pediarrce,  with   reference   to  the    subject  under  con- 

Ill&tttTS  Ol.  /  O  ?  o  ^ 

sideration,  consists  of  general  evidence  of  descent  or  relation- 
ship, of  evidence  of  particular  facts,  as  births,  marriages, 
and  deaths,  and  of  the  time  when  such  events  occurred, 
either  absolutely  or  relatively  to  each  other.  (4)  {b) 

(3)  13Ves.  514.  These  observations  (4)  In  Alonkton  r.  Attorney  General 
are  adopted  by  tlie  Lord  Chancellor  in  2  Russ.  (Si  Myhie,  161.  The  Lord  Ciian- 
JNIonkton  v.  Attorney  General,  2  Russ.  cellor  describes  as  matters  of  pedigree 
&  Mylne,  162.  And  see  upon  the  sub-  such  points  as  these, — "who  was  related 
ject  af  hearsay  and  relaxations  of  the  to  whom  ;  by  what  links  the  relation- 
old  rules  of  evidence,  Burke's  Works,  ship  was  made  out  ;  whether  it  was  a 
vol.14.  Report  from  Committee  ap-  relationship  of  consanguinity,  or  of  atfin- 
pointed  to  inspect  the  Lords' Journals.  ity   only  ;    when   the   parties  died,    or 

(a)  It  is  well  known  that  in  cases  of  pedigree,  the  rules  of  law  have  been  relax- 
ed ill  respect  to  evidence,  to  an  extent  far  beyond  what  has  been  applied  lo  other 
cases.  This  relaxation  is  founded  upon  pul')lic  convenience  and  necessity.  ]'er 
Story,  J.  2  Pet.  621.  See  also  5  Cowen,  237,  8  J.  R.  131.  But  care  should  bo 
taken  not  to  go  beyond  the  necessity  of  the  case  and  admit  the  most  vague  hear- 
says; or  extend  it  to  cases  where  it  is  apparent  that  it  is  not  the  best  evidence  which 
exists  in  the  case.  Thus,  a  report  that  the  body  of  a  particular  individual  was 
found,  and  buried  at  a  particular  time  and  place,  carries  on  the  face  of  it  an  admis- 
sion, that  if  well  founded,  it  is  not  the  best  evidence  which  exists  in  the  case,  for 
the  body  must  have  been  lound  and  buried  by  human  agents,  who  are  presumed  to 
be' competent  and  capable  of  testifying  to  the  facts,  especially  if  they  did  not  occur 
at  a  very  remote  period.     Jackson  v.  Ltz,  5  Cowen,  314. 

(b)  Hearsay  is  admissible  in  questions  of  pedigree.  3  Hals.  R.  250.  The  de- 
clarations of  deceased  members  of  a  family  as  to  marriages,  as  well  as  births  and 
deaths,  are  admissible.  But  the  evidence  of  the  marriage  is  but  incidental  to  the 
proof  of  pedigree,  id.  Where  the  witnesses  are  not  connected  with  the  family, 
have  no  personal  knowledge  of  the  fads  of  which  they  speak,  and  speak  generally 
of  what  they  have  heard  and  understood,  their  evidence  is  not  admissible.  1  J.  R. 
87.  Hearsay  is  evidence  in  cases  of  pedigree  only  where  the  fact  sought  to  be  es- 
tablished is  ancient,  and  no  better  evidence  can  be  obtained.  3  Marsh.  R.  326. 
See  also  5  Cowen,  237;  2  Leigh's  R.  665;  4  G.  &  J.  416. 

Absence  of  a  person  seven  years,  without  being  heard  from,  is  presumptive  evi- 
dence «f  his  death.     10  Pick.  516. 


Sect.   1.] 


Matters  of  Pedigree. 


207 


*Thiis,  upon  questions  whether  a  testator  at  the  time  of  ma- 
king his  will  was  of  full  age,  a  written  memorandum  by  a 
deceased  parent,  stating  the  time  of  his  birth,  has  been  ad- 
mitted to  be  good  evidence.  (1)  In  like  manner,  the  declara- 
tions of  parents  are  admissible  to  prove,  that  a  birth  took 
place  before  marriage,  as  well  as  to  disprove  the  fact  of  mar- 
riage entirely.  (2)  In  an  issue  out  of  Chancery  to  try  wheth- 
er A.  B.  was  the  eldest  son  born  out  of  wedlock,  the  declara- 
tions of  his  elder  brother  that  he  himself  was  a  bastard,  were 
received.  (3)  On  a  question,  which  of  three  children,  all 
born  at  a  birth,  was  heir,  evidence  was  admitted,  on  one  side, 
of  declarations  by  the  father  stating  which  was  the  *eldest 
son,  and  that  he  called  them  Stephanus,  Fortunatus  and  Achai- 
cus,  (according  to  the  order  of  names  from  St.  Paul's  Epistle,) 
for  the  purpose  of  distinguishing  their  seniority  ;  on  the  other 
side,  the  Court  received  declarations  by  a  relative,  who  was 
present  at  the  birth,  and  who,  upon  the  birth  of  the  second 
and  third  child,  took  a  string  and  tied  it  round  their  arms,  to 
know  them  from  the  eldest.  (1)  A  variety  of  illustrations  of 
what  is  deemed  in  law  matter  of  pedigree,  will  be  found  un- 
der the  subsequent  heads  of  this  subject. 

The  exception  in  favor    of  admitting  hearsay  testimony  in 
matters  of  pedigree  has  been   limited  to  cases,  in  which    the 


Time  of 
liirlh. 

[  *225  ] 


^=226  ] 


Place  of 
birth. 


wliether  they  are  actually  dead."  In 
Kidney  v.  Cockburn,  2  Russ.  &,  Mylne, 
167,  it  is  reported,  tliat  Tiiidal,  C.  J., 
at  nisijirius,  rejected  the  evidence  ot" 
inscriptions  on  a  tombstone  and  monu- 
mental tablet,  and  also  of  declarations, 
and  of  a  letter  stating  the  ages  of  indi- 
viduals ;  on  the  ground,  that  atUiougli 
relationship  in  general  might  be  proved 
by  hearsay,  particular  facts,  such  as  tlie 
ages  of  paities,  could  not.  The  Lord 
Chancellor,  however,  expressed  a  con- 
trary opinion,  as  also  Mr.  J.  Park,  and 
Mr.  .1.  Littledale,  to  whom  the  point 
was  submitted.  The  Lord  Chancellor, 
notwithstanding,  granted  a  case  for  the 
opinion  of  the  Court  of  K.  B.  But  the 
cause  was  compromised.  The  case  of 
Herbert  v.  Tucknal,  T.  Raym.  84,  is  a 
precise  authority  for  admitting  hearsay 
as  to  dales  ;  and  the  admissibility  of 
such  evidence  is  to  be  collected  from 
Lord  Mansfield's  words  in  Goodright  v. 
Moss,  Covvp.  501,  and  from  general 
practice.  It  was  received  by  Littledale, 
J.,  in  Ryder  v.  Malbon,  cited  2  Russ.  & 
Mylne,  16!). 

(1)  Herbert  w.  Tuckal.  Tr.  at  Bar. 
Sir  T.  Raym.  84,  cited  7  East,  290. 
And  see  Johnston  v.  Parker,  3  Phill.  42. 
Per  Lord  Mansfield,  in  Goodright  v. 
Moss,  Cowp.  .593. 

(2)  Steveus   v-  Moss,  Cowp.    5!}o, 


Stapyllon  v.  Stapylton,  and  Lord  Va- 
lencia's case,  cited  ib.  Rex  v.  St.  Pe- 
ter, Burr.  Sett.  Cases,  25.  Rex  v- 
Bramley,  fi  T.  R.  330.  May  «.  May, 
1762,  Tr.  at  I'ar.  B.  N.  P.  112.  Cooke 
V.  Lloyd,  I'eake's  Ev.  App.  78. 

(3)  Cooke  V.  Lloyd,  Peake's  Fv. 
App.  78.  Tiie  evidence  was  deemed 
admissible,  as  the  representation  of  one 
of  the  family  respecting  the  degree  of 
relationship  which  he  bore  to  it.  In 
the  same  case,  evidence  was  given  of 
the  declarations  of  the  parents,  as  to  the 
date  of  their  marriage  ;  of  opprobrious 
epithets  applied  by  the  father  to  the  chil- 
dren, alleged  to  be  born  before  the  Mar- 
riage, and  to  the  wife  ;  and  of  declara- 
tions of  the  father  on  his  death-bed  hav- 
ing pointed  to  a  younger  son  as  his  heir. 
The  declaration  of  the  elder  brother  was 
after  he  had  conveyed  away  the  estate. 
And  see  Rex  v.  Nottingham,  13  East, 
57,  n.,  that  a  person  is  competent  to  give 
evidence  of  his  own  illegitimacy,  as  by 
statements  touching  acknowledgmfint  and 
reputation.  Concerning  declarations  of 
legitimacy,  see  Berkeley  case,  4  Camp. 
401. 

(1)  Vin.  Ab.  Ev.  T.  b.  91.  Referred 
to  by  Lawrence,  J.  in  the  Berkeley  case, 
4  Camp.  101.  The  second  (juestion  to 
the  .fudgcH  in  the  Berkeley  tase,  4 
Camp.  403,  418. 


208  Hearsay  Evidence.  [Ch.   13. 

facts  arc  peculiarly  within  the  knowledge  of  relations,  on  the 
ground,  that  in  those  cases  only  exists  the  necessity  for  relax- 
ing the  general  rules  of  evidence.  Thus  it  has  been  held, 
that  the  declarations  of  a  deceased  parent,  though  they  are 
good  proof  of  the  time  of  a  child's  birth,  yet  that  they  are  not 
admissible  as  evidence  of  the  place  oi  the  birth.  (2)  («)  "  The 
])oint  in  dispute,"  said  Lord  EUenborough,  in  a  case  where 
the  admissibility  of  such  evidence  was  discussed,  "turns  on  a 
single  fact  involving  only  a  question  of  locality,  and,  therefore, 
not  falling  within  the  principle  of  the  rules  applicable  to  ca- 
ses of  pedigree."  (3)  It  may  be  observed,  however,  that  this 
fact  is  seldom  proveable,  except  by  the  evidence  of  rela- 
tions. (4) 

Non-access.  Jt  has  bccn  Stated  as  a  ground  for  rejecting  the  evidence  of 
a  father  or  mother  as  proof  of  want  of  access,  (to  bastardize 
a  child  born  during  wedlock,)  that  the  want  of  access,  im- 
plying the  continued  separation  of  the  parties,  must  be  noto- 
rious to  the  whole  neighbourhood  where  they  resided,  and  is, 

[  *227  ]  *therefore,  capable  of  more  satisfactory  proof;  (1)  and  this 
objection  would  apply  to  their  declarations,  provided  by  the 
term  non-access  is  meant  want  of  opportunity  for  sexual  in- 
tercourse. If,  by  the  term  is  meant  the  fact  of  sexual  inter- 
course, it  should  seem  that  the  declarations  could  only  be  re- 
jected on  the  ground  of  interest  or  public  policy.  The  ad- 
missibility of  declarations  of  the  wife  as  to  incontinence 
with  other  persons,  and  particularly  as  to  that  sort  of  inter- 
course whereby  a  child  might  be  produced,  and  to  which  she 
might  be  examined,  if  living,  does  not  appear  to  have 
been  decided.  Both  the  Avife's  and  the  husband's  declara- 
tions as  to  facts  in  general  tending  to  the  proof  of  illegitimacy 
have  been  rejected.  (2) 

(2)  Rex  V.  Erith,  S  East,  542.  Mod.  ISO,  ride  supra,  the  chapters  on 

(3)  lb.  incoiii[)elency  of  witnesses  to    givt-  evi- 

(4)  Ii  is  seldom  that  the  fiict  of  birth  dence  ujion  particular  subjects  ;  and  j«- 
can  be  proved,  except  by  relations  and  u  fra,  cliapter  on  Presumptive  Evi- 
few  other  persons,  since  it  lias  been  deiice.  iXotvvithstanding  the  observa- 
held  that  the  baptismal  register,  is  not,  tiona  of  Lord  EUenborough  in  Rex  v. 
per  se,  evidence  of  the  place  of  birth  ;  Lutfe,  as  to  the  wile's  proof,  "  that  the 
nor  of  the  fact  of  a  person  having  been  adulterer  alone  had  that  sort  of  inter- 
known  to  be  in  a  parish  at  an  early  course  with  her,  by  which  a  child  might 
a<»e.  be  produced  within  the  ordinary  period," 

(1)  B.  N.  P.  113,  citing  Rex  v.  it  appears  to  have  been  considered,  that 
Reading,  and  Rep.  temp.  Hardw.  ib.  79.     a  wife   cannot,    by  her   solo   testimony, 

(2)  Koe  V.  Iveading,  Rep.  temp,  bastardize  her  issue  ;  but,  as  it  would 
Hard.  79,  as  to  the  ground  of  intere.st.  seem,  that  the  fact  of  non-access  must 
Staplelon  v.  Stapleton,  ib.  277.  Ste-  also  be  proved,  and  that  by  other  vvit- 
vens  V.  Moss,  Cowp.  593,  as  to  the  nesses.  R.  v.  LufTe,  8  East,  203.  R. 
ground  of  policy.  Rex  v.  Lufl'e,  8  r.  Reading,  Rep.  temp.  Hard.  82.  R. 
East.  203.  Rex  v.  Kea,  11  East,  133.  v.  Bcdall,  2  Sir.  941,  1076.  And  upon 
1  Wils.  340.     Durr.  Sett.  Cases,  25.     8  these  authorities,    Aldcrson,  J.,  rejected 

(«)  JacUsonr.  EtiJ,  5Covvcn,  314;  320;  ]5  J.  R.  226;  18  id.  39;  4  Mass- 
702. 


Sect.   1.] 


Matters  of  Pedigree. 


Formerly,  it  was  the  practice  to  admit  the  declarations  of 
deceased  persons  as  to  particulars  concerning  their  settle- 
ments. (3)  But  it  is  now  settled  that  all  such  evidence  is  in- 
admissible. (4) 

*General  kindred,  as  that  a  person  was  heir  to  another,  be- 
ing his  cousin  or  relation,  is  matter  of  pedigree,  and  declara- 
tions to  that  effect  are,  it  would  seem,  receivable  in  evidence, 
though  the  point  Avas  formerly  considered  to  be  doubtful,  at 
least  so  far  as  regarded  proof  of  title  in  an  ejectment.  (1) 

The  nature  of  matters  of  pedigree,  as  defined  by  legal  au- 
thorities, having  been  considered,  it  is  proposed,  in  the  next 
place,  to  notice  the  variety  of  forms,  in  which  evidence  of 
this  description  has  been  received  in  courts  of  justice. 

The  hearsay  evidence,  which  is  admissible  in  matters  of 
pedigree,  may  be  conveyed  under  various  forms.  One  class 
of  proofs  seems  to  rest  principally  on  the  credit  due  to  the 
authors  of  the  statements,  such  as,  entries  in  family  Bibles  or 
other  family  books,  family  correspondence,  descriptions  in 
wills,  recitals  in  deeds,  statements  in  bills,  or  answers  in 
Chancery.  There  is  another  class,  apparently  resting  not  so 
much  upon  the  credit  due  to  the  authors  of  the  statements,  as 
upon  the  adoption  of  others,  such  as,  inscriptions  on  tomb- 
stones or  on  coffin  plates,  engravings  on  rings,  pedigrees  hung 
up  in  a  family  mansion,  or  the  like.  The  authorities  however, 
admit  of  being  arranged  with  much  precision,  according  to 
these  classifications.  The  distinction  is  here  noticed,  because 
it  will  afterwards  become  important  to  advert  to  the  examples 
about  to  be  detailed,  according  to  this  view  of  them. 

*An  entry  in  a  family  Bible  derives  some  credit  from  the 
circumstance,  of  its  being  entered  in  a  book,  which  is  kept  as 


209 


Upon  seltle- 
int'iiis. 


General 
kindred. 

[  *22S  J 


Forms  of 
heaisay  in 
pedigree. 


^4j    V 


4 


^' 


Entries  in 
r.ihles. 

[  *229  1 


the  declarations  of  a  deceased  wife, 
tending  to  show  that  her  son  was  not  lie- 
gotten  by  her  husband,  but  by  another 
man.  The  precise  nature  of  the  decla- 
rations does  not  appear  in  the  report. 
The  declarations  of  the  liusband  were 
also  rejected,  as  being  more  objectiona- 
ble, on  tiie  ground  of  interest.  It  may 
1)6  questioned,  however,  wiiether  the  de- 
clarations of  the  wife  were  not,  in  that 
case,  admissible,  for  the  purpose  of 
shewing  the  fact  of  an  adulterous  con- 
nection; as  to  which,  Mr.  .1.  Alderson 
observes,  that  he  did  not  know  th:it  her 
declarations,  even  to  that  e.\tent,  had 
ever  been  received. 

(3)  R.  V.  Greenvvick,  Burr.  Sett.  Ca- 
ses, 243.  Rex  v.  Nutty,  ib.  701.  R. 
V.  W'arehatn,  Cald.  141.  Rex  v.  Bury, 
ib.  48ti.     Re,\  v.  St.  Sepulchre,  ib.  .547. 

(4)  Rc.K  V.  Eriswell,  :J  T.  R.  707. 
Rex  V.  Chadderton,  2  East,  29.  Rex 
I.    Nunehaiii    Courtney,    1    Ivist,   U73. 

27 


Rex  V.  Ferry  Frystone,  2  East,  55. 
Rex  V.  Abergwelly,  2  East,  63.  la 
Whilluck  V.  Waters,  4  Carr.  &  P. 
37(j,  it  would  seem,  that  hearsay  evi- 
dence of  pedigree  had  been  rejected,  on 
the  ground  ihnt  the  suit  did  not  relate  to 
a  matter  of  pedigree.  But  there  appears 
to  be  no  foundation  for  a  distinction  be- 
twoen  cases,  where  a  matter  of  pedigree 
is  the  direct  subject  of  the  suit,  and  oth- 
er cases  where  it  occurs  incidentally. 

(1)  Doe  d.  Futter  v.  Randall,  2  Bf. 
&  P.  24,  a  declaration  by  a  deceased 
person,  that  A.  B.  was  to  have  his  es- 
tate, and  see  per  Eurrough,  J.  ib.  p.  26. 
By  Lord  Erskine,  13  Ves.  147.  By 
Lord  Chancellor,  2  Russell  in  3Ivhie, 
15S.  In  l<oe  d.  Thorne  v.  Lord,  2  W. 
151.  lflf)!>,  it  was  much  discn.ssed,  wheth- 
er a  strict  deduction  of  descent  was  nec- 
essary in  e|ecimenl,  as  from  a  coinmon 
ancestor,  or  at  least  (roni  brothers  atiij 
siBters,  which  was  allowed  to   be  an  iui- 


/ 


210 


Hearsay  Evidence. 


[Chap.   13. 


Famliy  cor- 

respond- 

euce. 

Recitals  in 
deeds. 


the  ordinary  register  of  famihes.  (1)  But  memoranda  inser- 
ted in  other  books,  as  an  ahnanack,  (2)  a  missal,  (3)  a  prayer- 
book,  (4)  and  in  other  documents  or  papers,  (5)  have  been 
admitted  in  evidence. 

Correspondence  between  members  of  the  family,  addressing 
each  other  as  relatives,  and  making  statements  of  pedigree, 
have  been  admitted  in  several  claims  of  peerage.  (6) 

Recitals  in  family  deeds,  as  marriage  settlements  and  the 
like,  have  been  admitted,  on  the  footing  of  declarations  of 
relatives.  (7)  Mr.  Baron  Perrott  is  said  to  have  rejected  a 
slip  of  parchment,  found  in  a  shoemaker's  shop,  and  marked 
Mr.  A.  B.'s  measure,  which  purported  to  be  two  lines  of  a 
deed,  and  contained  a  recital  of  descent,  but  the  Court  of 
King's  Bench  granted  a  new  trial,  on  the  ground  that  the  ev- 
idence ought  to  have  been  admitted.  (8)  In  an  early  case, 
[  *230  ]  where  *viva  voce  evidence  was  offered  on  the  part  of  the  plain- 
till",  that  on  a  former  trial  in  ejectment  against  the  same  de- 
fendant, a  deed  had  been  produced  on  the  part  of  the  defend- 
ant, having  a  clause  in  it  relating  to  a  pedigree,  the  Court  held 
such  proof  to  be  admissible,  on  the  ground  that  the  defendant 
had  the  deed  in  his  custody,  and  might  disprove  the  witness 
if  he  swore  falsely.  (1)  But  in  two  recent  cases  in  the  Court 
of  Chancery,  it  has  been  considered,  that  recitals  in  deeds 
were  not  evidence  of  pedigree  against  persons  who  were  stran- 
(2)      It  may  be  observed,  that  recitals  are 


gers  to  the  deeds. 


mediate  descent.  See  Newton  v.  New- 
ton, cited  ib.  And  a  case  of  Newton 
and  the  Corporation  of  Leicester,  and 
the  Attorney  General  was  cited,  where 
there  was  no  deduction  of  pedigree,  but 
the  lessor  of  the  plaintilT  obtained  a  ver- 
dict, because  it  was  proved  that  the  de- 
ceased used  to  call  him  cousin. 

(1)  By  Lord  Ellenborough,  4  Campb. 
421;  and  see  Johnston  v.  Parker,  3 
Phillimore,  82.  By  Lord  ftLinsfield  in 
Goodright  v.  Moss,  Cowper,  594.  Lord 
Erskine,  13  Yes.  514.  Le  Blanc,  10 
East,  120.  2  Russell  &  Mylne,  162. 
But  the  Lord  Chancellor,  considered  en- 
tries in  family  Bibles,  as  standing  on  the 
ground  of  family  acknowledgments,  and 
admissible  on  account  of  their  publicity, 
without  proof  that  the  entries  were  made 
by  a  member  of  the  family. 

(2)  Herbert  v.  Tuckal,  Sir  T.  Rayra. 
84. 

(3)  Slane  Peerage,  1S30,  printed 
minutes,  part  2,  p.  49. 

(4)  Leigh  peerage,  1829,  printed 
minutes,  p.  310. 

(5)  See  the  answers  of  the  Judges  to 
the  second  qutcry  in  the  Berkeley  case, 
4  Campb.  401.  Vin.  Ab.  Evidence,  b. 
87,  pi.  5,  an  old  book  out  of  Lord  Ox- 


ford's Library,  mentioning  the  pedigree 
of  William  Zouch,  signed  by  himself. 
The  entry  is  not  the  less  admissible, 
though  it  expressly  purport  to  be  made 
for  the  purpose  of  perpetuating  evidence 
of  legitimacy,  Berkeley  case,  3d  query. 
B.  N.  P.  233.  By  Lord  Mansfield,  de- 
clarations for  the  purpose  of  preventing 
family  disputes,  in  Goodright  v.  RIoss, 
Cowper,  591.  2  Russell  &  .Mylne,  164. 

(6)  Berner's  peerage,  Collins  on  Bar- 
onies, 355,  356,  361.  Leigh  peerage, 
printed  minutes,  part  2,  p.  140.  Hunt- 
ingdon peerage,  Attorney  General's  re- 
port, p.  357. 

(7)  Bull.  N.  P.  233.  Carth.  79. 
Nealc  V.  Wilday,  2  Str.  1151.  Chandos 
peerage,  printed  minutes,  p.  27.  Staf- 
ford peerage,  printed  minutes,  p.  110. 
Zouch  of  Hurgugworth  peerage,  printed 
minutes,  1804,  p.  275;  and  see  Doe  d. 
Johnson  v.  Pembroke,  11  East,  505. 
13  Ves.  514.  Lisle  peerage  case,  pp. 
116,  127.  Banbury  peerage  case,  pp. 
6,  117.  Devon  earldom,  by  Nicholas, 
1832,  App.  pp.  44,  46. 

(8)  Cited  by  Thomson,  B.,  2  Peake, 
N.  P.  C.  204. 

(1)  Eccleston  v.  Petty,  Carth.  79. 

(2)  Fort   V.   Clarke,    i    Uuss.    604. 


Sect.  1.] 


Matters  of  Pedigree. 


211 


frequently  in  the  nature  of  conventional  admissions  between 
the  parties  to  a  deed,  by  which  they  agree  to  be  bound  with- 
out reference  to  the  real  state  of  facts. 

A  description  in  the  will  of  a  member  of  the  family  is  also  DescHp- 
admissible  on  the  same  ground,  and  this  even  though  the  will  w'iiis" 
is  found  cancelled,  and  not  known  to  have  been  proved  or  act- 
ed upon,  if  it  appears  to  have  been  treated  as  a  ])aper  relating 
to  the  family.  (3)  In  the  Lisle  peerage  case,  (4)  a  descrip- 
tion in  a  will,  of  certain  individuals  being  the  next  "  heirs  in 
blood,"  was  relied  upon  as  showing  that  a  particular  person 
was  illegitimate,  (a) 

It  may  be  observed,  that  upon  principles  applicable  to  the 
proof  of  documentary  evidence,  a  probate  would  not  be  evi- 
dence, even  of  the  fact  of  relationship,  in  an  action  for  the  re- 
covery of  real  estate  ;  though  it  would  be  otherwise  with  res- 
pect to  the  ledger  book  of  the  Ecclesiastical  Court  or  a  copy 
of  it.  (5) 

*In  the  cases  respecting  the  admissibility  of  wills,  answers,  Bills,  &.c. 
and  depositions  in  Chancery,    as  evidence  of  pedigree,   some  ry. 
confusion  occurs,  attributable  chiefly  to  a  difficulty  in  deter-  [  *231  ] 
mining,  in  what  particular  cases  these  sources  of  evidence  are 


Slaney  v.  Wade,  1  Mylne  &  Craig,  338, 
where  the  recUal  stated  that  A.  13.  wag 
the  child  of  the  marriage  of  the  persons 
named  in  the  deed,  and  the  question 
was  that  of  A.  B.'s  legitimacy.  On  the 
etlect  in  general  of  recitals,  see  infra. 
Chapter  on  Jldmissioii!,  ;  and  Doe  d. 
I'ritchard  v.  Dodd,  2  Nev.  &  Mann.  45. 
Bowman  v.  Taylor,  2  Add.  &  Ell.  27S. 

(3)  Doe  d.  Johnson  v.  Earl  of  Pem- 
broke, 11  East,  .504.     See  7  East,  27S). 

(4)  Nicholas's  Lisle  peerage,  51,  53. 

(5)  Not  even  to  prove  the  relationsliip 
of  father  and  son  by  the  father's  will. 
Roll.  Abr.  678.  15.  N.  P.  246.  Doe 
d  Weld  V.  Ormerod,  1  H.  &  Ro.  466. 
DiUe  V.  Polhill,  Lord  Raym.  744.  As 
to  the  ledgerbooU,  see  Hull.  N.  P.  246. 
In  claims  of  peerage,  however,  the  orig- 
inal wills  are  generally  required  to  bo 
pro/Iuced.  But  a  question  arose  in  the 
late  claim  to  the  barony  of  Dc  Lisle, 
whether,  in  support  of  the  claimant's 
pedigree,  the  will  of  Ambrose  Dudley, 
Earl  of  Warwick,  dated  in  1589,  could 
be  read  from    the    register,    upon    proof 


that  it  was  the  custom  of  the  Prerogative 
Oliice,  at  the  time  when  the  will  was 
proved,  in  nine  cases  out  of  ten,  to  de- 
liver the  originals  back  to  the  executors, 
after  the  wills  had  been  proved  and  re<r- 
istered.  Counsel  were  directed  to  as- 
certain whether,  in  consequence  of  this 
custom,  some  cases  had  not  occurred 
where  the  books  were  received  in  evi- 
dence; the  result  of  their  search  does  not 
appear,  but  in  the  principal  case  the  reg- 
ister was  afterwards  produced,  and  an 
examined  copy  admitted.  Nicolas'  re- 
port of  the  De  Lisle  peerage,  pp.  51,  52, 
printed  minutes  of  same,  pp.  203,  206. 
Marchmont  peerage  case,  p.  5.  Kil- 
morrey  case,  p.  10.  But  in  the  Gardi- 
ner peerage  case,  to  prove  the  marriawe 
of  Lord  Gardiner  at  Madras,  a  book 
brought  from  the  secretary's  oliice  in  the 
India  House,  containing  entries  of  mar- 
riages and  burials  in  Madras,  copied  from 
the  original  register  in  England,  was  re- 
ceived, r'w/e  infra,  where  the  proof 
of  wills  and  registers  is  more  particularly 
treated  of. 


(a)  In  Denn  r.  Cornell,  3  J.  Cas.  174,  C.  made  his  will,  and  in  it  recited  that  he 
bad  conveyed  to  his  son  D.  his  lands  in  F.,  and  he  then  devised  his  other  estate  to 
liis  sons  and  daughters.  Afterwards  i)'s  estate  was  conliscated,  and  the  defendant 
claimed  under  that  confiscation,  and  deduced  his  title  from  the  stale.  No  deed  of 
the  F.  estate,  the  l;md  in  controversy,  and  the  heir  at  law  sought  lo  recover  on  tiiai 
ground.  15ut  the  (-'ourt  held  that  the  recital  in  the  will,  that  the  testator  had  con- 
veyed the  estate  to  1).  was  an  estoppel  of  the  heir  to  deny  that  fact,  and  bound  ihe 
estate.  In  this  case  the  estoppel  was  set  up  by  the  tenant  claiming  under  the  estate, 
as  an  estoppel  running  with  the  land.     Sec  also  4  I'et.  R.  I. 


212  Hearsay  Evidence.  [Ch.   13. 

open  to  the  objection  of  being  post  Ulcm  motam.  (1)  Lord 
Kenyon  held  the  opinion,  that  a  bill  in  Chancery  by  an  an- 
cestor was  evidence  to  prove  a  family  j)cdigree  stated  therein, 
in  the  same  manner  as  an  inscription  on  a  tombstone  or  in  a 
Bible.  (2)  And  althongli,  before  this,  answers  and  deposi- 
tions were  held  inadmissible  as  proofs  of  pedigree,  there  appears 
always  to  have  been  some  other  gronnd  of  rejection  pecnliar  to 
the  case, — as  that  the  answer  was  made  by  an  infant  through 
liis  guardian,  (3)  that  the  party  making  it  was  alive,  (4)  or  that 
the  de]iositions  were  not  accompanied  by  the  answer.  (5)  The 
Judges,  however,  held,  ii])on  a  (piestion  put  to  them  by  the 
House  of  Lords,  in  the  Banbury  Peerage  case,  (6)  that  a  bill 
or  depositions  in  Chancery,  in  a  suit  to  perpetuate  testimony, 
could  not  be  received  as  evidence  in  the  Courts  below,  on  the 
trial  of  an  ejectment  against  a  party  not  claiming  or  deriving 
in  any  manner  under  the  plaintilf  in  the  Cliancery  suit,  either 
as  evidence  of  the  facts  therein  deposed  to,  or  as  declarations 
respecting  pedigree.  They  added,  (though  the  question  does 
r  #233  1  i^ot  appear  to  have  been  put  to  them,)  that  it  *would  not 
make  any  diflerence  in  their  opinion,  if  the  bill  had  been  a 
bill  seeking  relief. 

But  it  would  seem,  that  the  Judges,  in  their  answer  to  the 
query  put  to  them  by  the  House  of  Lords,  suppose  the  exis- 
tence of  a  controversy,  lis  7nota,  as  invalidating  the  deposi- 
tions ;  for  it  certainly  has  been  the  practice  of  the  House  of 
Lords,  both  before  and  since  the  opinion  was  delivered,  to  ad- 
mit, as  evidence  of  the  pedigree  of  claimants  of  peerage,  bills 
and  answers  in  Chancery,  made  in  suits  where  the  facts  of  the 
pedigree  were  not  in  dispute,  but  only  incidentally  stated.  (1) 
In  the  report  of  the  Attorney  General  (Sir  Arthur  Pigott) 
on  the  claim  of  Charles  Augustus  Ellis  to  the  Barony  of  How- 
ard do  Walden,  in  1806,  he  stated  that  part  of  the  evidence, 
oflered  to  him  in  support  of  the  claimant's  pedigree,  was  a 
bill  and  answer  in  Chancery  with  the  decree  thereon,  which 
he  considered  as  adequate  evidence  ;  because  the  bill,  having 
set  forth  the  pedigree  to  show  an  heirship,  the  answer  did 
not  controvert  such  heirship ;  and  the  decree,  after  giving 
leave  to  the    plaintiffs  to  bring  an   ejectment  to   try  the  title, 

(1)  J^ftZe  m/ra,  where  the  subject  of  (1)  Koos'  peerage,  printed  minutes, 
the  lis  mota  is  considered.  1804,  p.  293,  294.     Zonch  of  Ilurgug- 

(2)  Taylor  v.  Cole,  7  T.  R.  3,  n.  worth  peerage,    printed  minutes,   1804, 

(3)  Eccleston  v.  Petty,  Carth.  79.  p.  221.  Slane  peerage,  printed  min- 
Kccleston  r.  Spoke,  Comb.  156.  12  utes,  1S30,  part  1,  p.  32  ;  part  2,  p.  42. 
Vin.  Ab.  94.  Netterville    peerage,    printed     minutes, 

(4)  Hilliardw.  Phaly,  8  Mod.  ISO.  1827,  p.  43.  In  these  two  last  cases 
.(5)  Piercey's  case,  Jones,  164.  the  bills  nnd  answers  were  from  the 
(6)  2  Seiwyn's  N.  P.  754.     Le  I\Tar-     chancery    in  Ireland,    the  claims  being 

r.hant's    Gardiner    peerage,    App.    411.     to    Irish    peerages. 
And  see   the  opinions  of  the  .fudges  in 
(the  Berkeley  case.  4  Camp)).  412. 


Sect.   1.] 


Matters  of  Pedigree. 


213 


directed  the  defendant  to  admit  the  heirship.  (2)  This  evi- 
dence had  been  admitted  by  the  House  of  Lords  in  an  earher 
claim  to  the  same  barony,  (3)  and  was  again  admitted  in  the 
claim  npon  which  this  report  was  made.  (4) 

Engravings  upon  rings  (5),  and  charts  of  pedigree  hmig  up 
in  family  mansions,  (6)  or  found  among  family  documents,  (7) 
*have  been  received  in  evidence.  But  a  pedigree  found  in 
the  Ashmoleon  Library  at  Oxford,  unaccompanied  by  any 
proof  that  it  was  made  by  a  member  of  the  family,  or  by  any 
person  connected  with  it,  was  rejected.  (1) 

Inscriptions  on  tombstones  are  constantly  received  in  evi- 
dence in  questions  of  pedigree,  both  in  Courts  of  Law,  and 
by  the  House  of  Lords  in  claims  of  peerage  ;  (2)  and  inscrip- 
tions on  coffin  plates  in  family  vaults  and  graves  have  also 
been  given  in  evidence,  on  the  same  ground,  in  several  peer- 
age cases.  (3)  Examined  copies  of  those  inscriptions  are  ad- 
mitted for  the  sake  of  convenience,  the  case  forming  an  ex- 
ception to  the  rule  which  admits  copies  only  when  the  origi- 
nals are  public  books.     The    admissibility  of  this  evidence  is 


Engrav- 
ings upon 
rings. 
Ciiarls  of 
pedigree. 

[  *233  ] 


Inscrip- 
tions   on 
tomb- 
stones. 

on  coffin 
plates. 


(2)  Attorney  General's  report,  1806, 
p.  35. 

(3)  Claim  of  Sir  John  GritBn  in  1781. 
minutee  reprinted  1806,  p.  15. 

(4)  Printed  minutes,  Howard  de 
Walden  peerage,  1806,  p.  26. 

(5)  13  Ves.  144,  cited  2  iM.  &  P.  26. 
Besides  the  information  which  the  com- 
mon mourning  rings  may  furnish,  the 
Jews  engrave  upon  the  wedding  ring  the 
date  of  their  Marriage.  Grimaidi's 
Origines  Genealogicce,  prope  finem. 

(6)  2  Cowp.  594. 

(7)  De  Lisle  peerage  case,  report  by 
Nicolas,  p.  45.  See  also  the  case  of 
the  Berner's  Barony,  Collins  on  Baron- 
ies, 333.  In  Monkton  v.  Attorney 
General,  2  Russell  &  Mylne,  161,  it 
was  expressly  held,  that  a  pedigree  was 
admissible,  though  not  hung  up  or  made 
public,  oil  proof  of  its  having  been  made 
by  a  member  of  the  family.  But  it  was 
considered  by  the  Lord  Ciiancellor,  that 
where  the  pedigree  is  hung  up,  it  is  ad- 
missible, without  proof  of  its  having  been 
made  by  the  directions  of  the  family,  on 
the  ground  of  being  a  fmiily  acknowl- 
edgment. Rings,  and  inscriptions  on 
tombstones  are  considered  by  his  Lord- 
ship as  admissible  on  the  same  ground  ; 
and  that  the  publicity  of  ihcm  supplies 
the  defect  of  proof  in  not  showing  that 
they  were  declarations  made  by  mem- 
bers of  the  family.  The  pedigree  ad- 
iiiittiid  by  the  Lord  Chancellor  was 
foun<lfd  on  hearsay,  and  was  in  some 
respects    erroneou.s,    but  these    circum- 


stances were  not  considered  to  aflect  its 
admissibility. 

(1)  Chandos  peerage,  printed  min- 
utes, p.  11.  See  infra,  where  the 
proper  custody  of  documents  is  more 
particularly  considered. 

(2)  Lord  Mansfield  in  Goodright  v. 
Moss,  Cowper,  594.  Vin.  Ab.  Evi- 
dence, T.  b.  37.  13  Ves.  144,  514. 
B.  N.  P.  233.  7  T.  R.  3,  n.  10  East, 
120.  Duncomb  Tr.  jier  ^ats,  424.  1 
Lilly's  Pract,  Reg.  552.  Sty.  208. 
Nicholas's  Lisle  Peerage,  50,  173. 
Peerage  Claims,  passim.  Kidney  v. 
Cockburn,  2  Russell  &  Mylne,  171. 
Ryder  v.  Malboiie,  cited  ib.  when  Lit- 
tledale,  J.,  admitted  an  inscription  on  a 
tombstone,  as  stating  the  death  of  a  par- 
ty at  a  particular  age.  See  also  Monk- 
ton  V.  Attorney  General,  2  Russell  & 
Mylne  163.  with  respect  to  the  weight 
due  to  inscriptions  on  tombstomes,  much 
may  depend  on  the  circumstances, 
whether  they  are  contemporaneous,  and 
whether  they  are  set  up  in  the  view  of 
surviving  relatives.  It  is  to  be  observed, 
that  this  species  of  evidence  often  tren- 
ches on  the  rule  which  rejects  seconda- 
ry evidence  ;  inasmuch  as  the  authors  of 
the  evidence  may  be  alive.  In  Monk- 
Ion  V.  xAttorney  (ieneral,  the  Lord  Chan- 
cellor considers  tombstones  on  the  same 
footing  as  rings,  pedigrees  hung  up,  and 
family  l)ii)les,  and  as  admissible  on  ac- 
couiit  of  their  publicity,  without  connec- 
ting lliem  with  the  family. 

(3)  Ciiandos,  printed  minutes,  p.  10. 


214 


Hearsay  Evidence. 


[Ch.  13. 


[  *234  ] 

Alonuniciil 
ill  Disscii- 
tor's  bury- 
injr  ffrouiid. 


Mistakes 
on  lomb- 
stoiies. 


Mural  in- 
scription. 

[  *235  ] 


*olo.irly  not  aHected  by  llio  circumstanco  of  the  originals  be- 
ing in  a  church  or  churchyard.  In  the  case  of  the  Barony  of 
Say  and  Sele,  in  1781,  part  of  the  evidence  for  the  petitioner 
was  an  inscription  on  a  tombstone  in  the  burying  ground  for 
Dissenters  at  Bunhill  Fields  ;  (I)  and  in  a  late  case,  Mr.  Jus- 
tice Park  admitted  with  some  hesitation,  an  inscription  on  a 
tombstone  in  a  Dissenter's  burying  ground,  for  the  purpose  of 
proving  the  death  of  a  cestui  que  vie.  (2)  Where  monuments 
have  been  decayed  by  time,  or  surreptitiously  destroyed  or  re- 
moved, evidence  of  the  recollection  of  witnesses  respecting 
ihem,  and  as  to  the  inscriptions  they  bore,  has  been  admitted 
by  the  House  of  Lords.  (3) 

The  credit  of  monumental  inscriptions  may  always  be  im- 
peached, and  their  evidence  seems  peculiarly  open  to  attack, 
not  only  on  account  of  the  great  facility  of  forgery,  but  also 
because  the  preparation  of  them  is  often  committed  to  under- 
takers, executors,  or  other  persons  not  members  of  the  family, 
or  because  perhaps  the  inscription  has  been  delayed  till  a  pe- 
riod when  the  facts  are  but  imperfectly  remembered.  In  the 
claim  of  Katherine  Bokenham  to  the  Barony  of  Bernors,  an 
inscription,  upon  the  tombstone  of  a  person  who  was  one  of 
the  links  in  the  pedigree,  was  given  in  evidence  ;  but  it  ap- 
peared from  the  entry  of  her  burial  in  the  parish  register,  and 
from  her  will,  that  there  was  a  mistake  of  a  year  on  the  tomb- 
stone as  to  the  time  of  her  death  ;  and  the  mistake  is  said  to 
have  arisen  from  a  delay  in  laying  down  the  stone.  (4) 

*A  mural  inscription  has  been  received  in  evidence,  which 
gave  an  historical  account  of  a  family,  and  Avas  placed  in  a 
chancel  formerly  used  as  the  burial  place  of  the  family,  and 
which  was  i>art  of  the  church  belonging  to  the  parish  where 
the  family  had  long  been  landed  proprietors  ;  and  in  the  same 


Rokeby,  printed  minutes,  p.  4.  Lovat, 
printed  minutes  p.  77. 

(1)  Mr.  Serjeant  Hill's  Collections  in 
I. inc.  Inn  Library,  vol.  26,  p.  173. 

(2)Whitluck  V.  Waters,  4  Carr.  & 
P.  376.  There  does  not  appear  to  be 
any  ground  for  the  Judge's  doubts  upon 
this  subject  ;  as  the  admissibility  of  the 
inscription  depends  on  a  totally  diti'erent 
principle  from  that  of  the  admissibility 
of  registers. 

(3)  In  the  Roscommon  and  Leigh  Pec- 
rage  cases.  The  latter  case  turned  whol- 
ly on  the  existence  of  a  monument,  al- 
leged to  have  been  surreptitiously  re- 
moved from  Stonely  Church.  Numer- 
ous witnesses  were  examined  for  and 
against  its  existence.  See  the  printed 
evidence,  1S29. 

(4)  Collins  on  P>aronies,  363,  and 
rote.  There  are  several  well  known 
instances  of  similar   mistakes.     In   the 


epitaph  upon  Spencer's  monument  in 
Westminster  Abbey,  there  is  a  mis-state- 
ment as  to  tile  time  of  his  birth  of  no 
less  than  forty  years,  and  as  to  that  of 
his  death  of  three  years  ;  see  Piog.  Jjrit. 
nom.  Spencer.  The  time  of  death  is  er- 
roneously stated  on  the  monument  of 
Sterne;  see  Biograpiiy,  prefixed  to  works, 
ed.  1816  ;  and  the  time  of  birth  on  that 
of  Goldsmith,  see  Boswell's  .lohnson, 
vol.  3,  p.  69,  Oxford  ed.  1826.  In  the 
Lisle  case  (Nicolas's  Lisle  peerage  case, 
89),  a  monumental  inscription  was  pro- 
duced in  these  terms,  "  To  the  memory 
of  tlu!  late  Lady  Katharine,  late  wife  of 
Sir  Ilicliard  Leveson,  one  of  the  daugh- 
ters and  co-heirs  of  Sir  R  Dudley, 
Knight,  son  to  Robert,  Earl  of  Leicester, 
by  Alicia,  his  wife,  daughter  to  Sir  T. 
Leigii,  of  Stoneleigii,  Knight  and  Baron- 
et," which,  it  was  observed,  was  an  in- 
genious device  to  represent  to  the  curso- 


Sect.  1.]  Matters  of  Pedigree.  215 

case,  it  was  held,  that  although  the  inscription  had  been  de- 
faced twenty-four  years  ago,  its  contents  might  be  proved  by 
copies  taken  when  the  inscription  was  entire.  The  evidence 
was  said  to  be  admissible,  as  well  upon  the  authority  of  the 
cases  respecting  tombstones,  as  of  that  respecting  a  pedigree 
hung  up  in  a  family  mansion.  ( 1 ) 

Coat  armour  has  sometimes  been  relied  on  in  questions   of  Coat  ai- 
pedigree.      Lord  Coke  speaks   of  its  use   to  the    bearers    in 
"manifesting    of  what  families   they  be  ;"  (2)  and    Siderfin 
says,  "  arms  serve  to  distinguish  family  from  family,    and  to 
prevent  branches   of  the  same    family  interfering   with  one 
another."  (3)      Whilst    the  Heralds  possessed  and  exercised 
the  power  of  punishing    usurpations,   some  credit  may  have 
been  due  to  this  evidence,  probably  on  the  ground,   that,    by 
the  assumption  of  a  particular  bearing,   the   party  must  have 
meant  to  affirm,  that  he  was  connected  in  that  manner  with 
the  family  to  which  it  belonged.      The  claim  of   Sir  Michael 
Blount  to  the  Barony  of  Mountjoy,  in  the  time  of  Queen  Eliz- 
abeth, turned   almost  wholly  on  the  arms   in  a  window    at 
Iver,  in  Buckinghamshire,  set  up  in  the  reign  of  Henry  the 
Seventh ;  and  elaborate  arguments  of  the  Heralds  have  been 
preserved,  (4)  as  to  the  credit  due    to  this  evidence,    in    sup- 
port of  the  claim  of  Sir  Michael,  as  heir  male  of  the  body  of 
Walter,  first  Lord  Mountjoy,  in  contradiction  *to  the  books  in  [  *236  j 
the  Herald's  Oflice,  which  deduced  his  descent  from  Thomas, 
a  brother  of  this  Walter.     In  the  modern  case  of  the  Barony 
of  Chandos,  where  the  claimant  alleged,  that  he  was  descend- 
ed from  the  third  son  of  the  first  Lord  Chandos,  he  was  allow- 
ed to  give  in  evidence  the  arms  of  his  family  in  Herald's  Vis-  neraid's 
itation  Books,  and  upon  seals  to  deeds,  delineations  on  parch-  books. 
ment,  and  other  family  papers  ;  which   arms  a  Herald  proved 
were  those  of  the  Chandos  family,  with  the  mark  of  the  third 
branch.  (1)  An  achievement  with  the  same  arms  was  likewise 
produced,  which  the  mother  of  the  claimant  proved  was  hung 
up  in  the  family  mansion  when  she  first  married,  and  that  she 
had  heard  her  husband  say,   it  had  belonged  to    his  grandfa- 
ther. (2)     In  the  Huntingdon  Peerage  case  the  Attorney  Gen- 
eral admitted  in  evidence  an  armorial  shield,  carved  upon  oak, 
which  had  been  given  by  the  late  Earl  of  Huntingdon  to  the 
father  of  the  petitioner.     On  this  shield,  which  was  produced  shield, 
from  a  family  chest,  were  the  arms  of   Stanley  and  Hastings 
quartered,  in  consequence,  as  it  was  supposed,  of  the  marriage 
in  the  reign   of  James  the    First  of  Henry  the  Fifth,  Earl  of 

ry  reader,  that  Sir  R.    Dudley  was  a  le-         (2)  Co.  Litt.  27,  a. 
gitimate  son  of  llio  Ilarl  of  Leicester.  (li)   J  Sid.   ;554. 

(1)   Klaiiey    v.    Wade,    1    Rlylno    &  (1)   llarl,  MSS.  1886,  (Jill. 

Craig.  :i:{S.     It  would  seem  thai  the  CO-         (!)   Chandos    peerage,    piinted    iiiin  • 

pies  could  oidy  be    evidence    by  way  of  ule.«,  pp.  <),  21,  37,  40,  41). 
refreshing  the  memory  of  tlie  witnesses.         (2)  Ibid,  pp,  10,  49. 


210  Hearsay  Evidence,  [Cli.   13. 

Huntingdon,  with  the  daughter  of  Fcrdinando  Stanley,  Earl 
of  Derby.  (3)      So  in  support  of   the  presumption  of  a  mar- 
riage, evidence  has  been  adduced  that  the   husband   impaled 
Carria<'e      ^^^  wife's  amis  With  liis  own   on  his  plate,    seals,    and  car- 
arms,  riage.  (4)     It  is  observable,  however,  that   the  value,    if   not 
the  admissibility  of  this  evidence,  de])ends  upon  its  antiquity, 
and  the  Attorney  General,  therefore,  in  the  Chandos  Peerage 
case  cross-examined  the  Herald,  to  show  that    at    the  time, 
when  it  was  proved  that  the  achievement   before    mentioned 
was  in  the  family  of  the  claimant  (about  1090,)  there  was  no 
authority  in  existence  to  correct  usurpation.     The  year  of  the 
last  Herald's  Visitation  (lOSO),  seems  to   have    been  thought 
the  time  when  this  authority,  or  at   least  the   exercise    of  it, 
ceased.  (5) 
Coiiduct,  *j^  j^jr^y  -[^^  convenient  to  mention,  in  treating  of  the  sub- 
cquivaioiii    jcct  of  ])cdigree,  (though  it  more  properly  belongs  to  the  head 
ationT'^*^'    of  presumptive  evidence),  that  the  conduct  of  parties  to  each 
r  *237  1  other,  the  disposition  of  property,   the  devolution  of  property 
and  title,  and  similar  circumstances,  are  frequently  received  in 
questions  of  pedigree,  on  the  footing  of   declarations.      They 
are  properly  facts,  from  wliicli  an  inference  as  to    the  opinion 
and  belief  of  families    is  drawn ;    and,    therefore,  they  ulti- 
mately rest  upon  the  same  basis  as  hearsay  evidence  of  fami- 
ly tradition.     Chief  Justice   Mansfield,  speaking  of  a   father 
bringing  up  a  son  as  legitimate,  "  this,"  he  said,  "amounts  to  a 
daily  assertion  that  the  son  is  legitimate."  (1)     And  in  Good- 
right  V.  *S'ai<Z,  (2)  Ashurst,  J.,  observes,  that  in  that  case  "  there 
were  strong  circumstances  to  shew  that  the  son  was  a  bastard  ; 
amongst   others,  a   very  forcible    one  occurred,  namely,  that 
the  son  had  taken  a  different  name  from  his  birth,  the  name 
of  the  person  with  whom  his  mother  was  living  at    the  time, 
which  had  been  retained  by  him  and  his  descendants  ever 
since  ;  this  was  a  v^ery  strong  fainily  recognition  of  his  illegi- 
timacy."    In  the  Leigh  peerage  case  much   stress   was   laid 
upon  the  alleged  fact  that  an  ancestor  of  the  claimant,  in  in- 
digent circumstances,  had  once    paid  a  visit  to  Lord    Leigh, 
which  he  used  to    boast   of  among  his  neighbours,    and  that 
his  Lordship  had   given  him  a  suit  of  clothing.  (3)      And  in 
the  Clinton  peerage  case,  part  of  the  evidence  for  the  claimant 
was,  that  the  sole  descendant  of  an  elder  branch  of  the  family, 

(3)  Huntingdon  peerage,  by  bill,  p.  295.  As  to  the  Earl  Marshall's  boolc, 
280.  Attj.  General's  report,  ibid.  p.  see  Lisle  [leerage  case,  p.  12.  With  re- 
359.  spect  to   the    evidence  of  the    Herald's 

(4)  Hervey  t).  Hervey,  2  W.  Bl.  877.  books,    vide   iyifr a,  where    the    subject 

(5)  Ciiandos  peerage,  printed  iiiin-  of  public  documents  is  more  particularly 
utes,  p.   40.     And  see  further  as    to  the     considered. 

authority  of  the  Herald's,  Russell's  case,         (1)   4  C.'ampb.  416. 

4  Mod.  12S.    Oddis  v.  Domvillo,  Show.  (2)  4  T.  K.  o5(i. 

Ca.   Purl.  66,  Blunt  v.    Bloant,    1  Alk.         (o)  I'riuted  minutes,  p.  2DS,  ct  seq. 


Sect.   1.]  Matters  of  Pedigree.  217 

who  died  unmarried,  had  bequeathed  several  family  pictures 
to  a  person  who  was  the  claimant's  imdoubted  ancestor  :  and 
that  the  sole  descendant  of  another  elder  brancli  had  limited 
certain  estates  to  the  right  heirs  of  his  maternal  grandfather, 
which  estates  were  then  in  the  possession  of  the  claimant  as 
such  right  heir.  (4) 

The  separate  weight  which  is  due  to  this  evidence  was  re- 
cognised *in  the  case  of  Beer  v.  Ward.  A  deed  was  put  in  [  *238  ] 
evidence  by  which  certain  estates  were  limited  in  remainder, 
by  the  owner  to  his  grandson,  (the  person  whose  legitimacy 
was  in  question,)  and  the  deed  described  him  as  if  he  were 
legitimate  :  Chief  Justice  Dallas  said  he  was  quite  aware  that 
besides  the  manner  of  describing  him,  there  was  an  argument 
arising  out  of  the  disposition  of  the  property.  (1) 

This  kind  of  evidence  is  often  material  in  raising  the  pre- 
sumption of  death  without  issue  ;  the  devolution  of  title  or 
property  upon  a  younger  branch,  especially  after  an  express 
previous  limitation  to  an  elder,  being  relevant,  though  of  course 
by  no  means  conclusive,  evidence  of  a  failure  of  the  issue  of 
the  latter.  Thus,  in  the  recent  claim  to  the  Earldom  of  De- 
von, it  was  shewn  that  property  had  been  settled  on  the  eldest 
son  William  in  tail,  remainder  to  the  second  son,  Humphrey 
in  tail,  remainder  to  the  third  son,  Peter  in  tail,  and  the  death 
of  Humphrey  without  issue  was  in  part  proved  by  an  inqui- 
sition taken  after  the  death  of  Peter,  finding  that  he  died  seis- 
ed of  the  lands  so  settled.  (2)  This  occurred  in  the  reign  of 
Richard  2nd  and  Henry  4th,  after  the  statute  rfe  donis,  and  be- 
fore the  introduction  of  fines  and  recoveries,  when  it  might  be 
reasonably  presumed  that  the  land  must  have  gone  according 
to  the  settlement.  For  the  same  purpose  snuilar  evidence 
has  been  given  of  the  devolution  of  property  under  the  like 
circumstances  in  later  periods,  accompanied  with  proof  of  a 
search  at  the  warrant  of  Attorney  Office,  and  at  the  King's 
Silver  Ofiice,  to  shew  that  no  recovery  was  suflered  or  fine 
levied  of  the  lands  settled.  (3) 

In  tlie  case  of  the  De  Lisle  peerage,  part  of  the  proof  thai 
Ptobert  Dudley,  Earl  of  Leicester,  died  without  lawful  issue, 
was  that  the  right  of  presentation  to  an  Hospital  at  Warwick, 
Avhich  had  been  given  by  the  deed  of  foundation,  after  the 
Marl's  death  to  his  heirs,  had  been  uniformly  exercised  from 
the  *death  of  tlic  Earl  down  to  the  last  presentation  by  the  [  *239  ] 
collateral  branch  through  which  the  petitioner  claimed.  (1) 
In  the  Baidjury  Peerage  case,  the  illegitimacy  of  the    claim- 

(4)    (-'laimanl's   case,     Mr.    Serjeant  (3)    ('liandos   peerage,    piitited  min- 

llill's  collections,  vol.  80,  p.  331.  utes,  p.  1 1. 

(1)  Printed  report  of  trial  on    first  is-  (I)    Nicolns's    report  of  llie    case   of 
sue,  pp.  39,  40.  Dc  Lisle  I5arony,  fip.  .50,    120,    printed 

(2)  JN'icolas's  report  of  the  case  of  the  ininules  ofthe  sanu,  pp.  171,11)7. 
earldom  of  Devon,  App.  p.  36. 

28 


218 


Hearsay  Evidence. 


[Ch.   13. 


Peclaralion 
upon  de- 
claralioii. 


ant  was  principally  established  by  inferences  arising  out  of  the 
conduct  of  the  parties  ;  as  that  he  birth  was  concealed,  and 
that  the  child  took  the  name  of  Vaux  ;  and  that  Lord  Banbu- 
ry accepted  dignities  from  the  King,  and  made  a  disposition 
of  his  property  inconsistent  with  the  idea  of  his  knowing  that 
he  had  any  children.  And,  in  the  Gardiner  Peerage  case, 
where  a  great  deal  of  evidence  was  adduced  as  to  the  con- 
duct of  the  parties  concerned,  Lord  Eldon  says,  that  evidence 
of  conduct,  and  of  declarations  connected  with  conduct,  were 
to  be  considered,  in  order  to  come  to  a  just  determination  up- 
on the  subject  of  that  claim.  (2) 

There  appears  to  be  no  objection,  in  questions  of  pedigree, 
to  receiving  hearsay  in  the  second  degree,  when  both  degrees 
arc  within  the  family.  Accordingly,  it  has  been  held,  that 
the  declarations  of  a  deceased  lady,  that  her  first  husband  was 
accustomed  to  make  certain  statements  respecting  the  pedi- 
gree of  the  family,  were  receivable  in  evidence.  (3)  And 
the  same  principle  has  been  recently  recognized  in  a  case  in 
Chancery.  (4) 

Evidence  of  pedigree  is  frequently  presented  in  other  forms, 
and  derived  from  other  sources,  besides  those  which  have  been 
enumerated,  and  particularly  from  public  documents,  as  in- 
(^uisitions  jDos^  mortem^  parish  books,  parish  and  marriage 
registers.  But  the  admissibility  of  these  documents,  and  of 
Herald's  books,  which  have  been  incidentally  noticed,  de- 
r  *240  ]  pends  *apon  principles  differing  in  some  respects  from  those 
which  have  been  treated  of  in  the  present  section,  and  which 
require  a  separate  consideration.  (1)  In  the  same  part  of  the 
Work  will  be  more  conveniently  considered  the  cases  relative 
to  various  kinds  of  unauthorized  registers  containing  evidence 
of  pedigree. 

In  matters  then  of  pedigree,  as  defined  by  the  preceding  il- 
lustrations, hearsay  evidence  in  the  various  forms  that  have 
been  mentioned  is  receivable.  But  it  remains  to  be  stated  un- 
der what  qualifications  it  is  received. 

As  to  such  qualifications,  it  is  obvious  that  the  value  of  this, 
as  indeed  of  all  hearsay  evidence,  must  greatly  depend  upon  the 


Qualifica- 
tions of 
hearsay  in 
pedigiee. 


Requisite 
knowledff 


(2)  See  the  speech  of  Copley,  Attor- 
nev  General,  in  the  Gardiner  peerage 
case,  p.  285. 

(3)  Doe  d.  Futter  v.  Randall,  2  I\I. 
&  P.  20.  Per  Best,  C.  J.,  ib.  Though 
in  the  previous  case  of  Johnson  v.  Law- 
son,  2  Bing.  88,  Chief  Justice  Best  ob- 
serves, that  "  hearsay  too  deep,"  or  de- 
clarations upon  declarations  have  never 
been  received,  although  made  by  nieiii- 
bers  of  a  family. 

(4)  Monklon  v.  Attorney  General,  2 
Russell  &  Mylne,  165.  The  case  of 
Alhol  V.  Ashburnham,   B.   iS'.  P.    295, 


was  cited  as  an  authority  for  receiving 
declarations  at  second  hand,  or  hearsay 
upon  hearsay. 

(1)  Vide  infra,  where  the  subject  ef 
public  and  oiticipl  documents  is  more 
particularly  treated  of.  Parish  books 
fre(|uentty  aflbrd  evidence  on  matters  of 
pedigree,  'i'hus  the  date  of  Caxton's 
burial  was  fixed  by  a  charge  of  twenty- 
pence  for  two  torches  and  four  tapeta 
used  at  iiis  funeral,  entered  in  one  of 
the  parish  books  of  St.  Margaret's,  VVest- 
n^iuBler. 


Seel,   l.j  Mailers  of  Pedigree.  219 

knowledge  which  the  declarant  possessed  of  the  facts  spoken 
to.  It  was  long  nnsettled,  whether  any  and  what  kind  of 
connection,  from  which  knowledge  might  he  presumed,  must 
have  subsisted  between  the  party  making  the  declaration  and 
those  to  whom  it  referred.  Formerly  there  seems  to  have 
been  no  limitation  to  any  particular  class  of  persons,  and  evi- 
dence of  the  reputation  of  the  country  or  neighborhood,  and 
of  general  tradition  as  to  the  facts  of  descent  or  relationship, 
was  in  some  cases  admitted.  (2)  Afterwards  it  was  thought 
necessary  that  the  hearsay  should  proceed  from  those  whose 
connection  with  the  family  afforded  them  peculiar  means  of 
knowledge.  "  The  *doctrine  of  Lord  Mansfield  (that  tradi-  [  *'241  ] 
tionis  sufficient  evidence  in  point  of  degree,  (1)  )  must,"  said 
Lord  Eldon,  in  the  case  of  Wliitelocke  v.  Baker  (2)  "be  un- 
derstood as  it  has  been  practised  and  acted  upon.  The  tradi- 
tion must  be  from  persons  having  such  a  connection  with  the 
family,  that  it  is  natural  and  likely,  from  their  domestic  hab- 
its and  connections,  that  they  are  speaking  the  truth,  and  that 
they  could  not  be  mistaken."  The  nature  of  this  connection 
was,  however,  undefined,  though  it  does  not  appear  to  have 
been  thought  requisite  that  the  declarant  should  be  related  to 
the  family  by  blood  or  affinity.  Upon  several  occasions  at 
nisip?-ius,  the  declarations  of  servants,  physicians,  and  inti- 
mate friends  were  admitted  ;  (3)  and  the  practice  was  coim- 
tenanced  by  obiler  dicta  of  Mr.  Justice  Bnller,  Lord  Kenyoii, 
and  other  Judges.  (4)  But  at  a  later  period,  Lord  LIdon 
speaks  doubtfully  upon  the  point  ;  (5)  and  afterwards  in  the 
case  of  Beer  v.  IVard,  Chief  Justice  Abbott  received  the  dec- 
larations of  servants  and  acquaintances,  subject  to  fiu'lher  dis- 

(2)  Anne^leyii.  Earl  of  Anglesea,  17  (1)  Covvp.  5!)4. 

Ilow.    iSt. 'I'f     1160,    1195.      Claim    of  (2)    13Vo.^   514. 

Sir   iMioliael    BlouiU    to    tlie   i)aioiiy    of  (o)   Duke  of    Atliol  v  Lord  Aslibmri' 

Mountjoy,     temp.      Elizalielli,      whore  linni,   E.    14       fi'eo.  2  Cull    N.  P.  29(1. 

"  common  fame"  was    relied  on  as  evi-  fJilb.  I'lvid.  1 1  2,  S.  C.     (See  a  ditTereni 

donee  of  his  descent  ;  and  see  as  to  gen-  statement  of  this  ease  from  a  MS.  of  Mr. 

eral  tradition,  per  Lord  Manslield,  ('owp.  VVegs^,  in    2  SpIw.  N.  1'.  734,  .^ilh  edit., 

.594  ;  2    VV.    Bl.  1099  ;   14  East.   :}30.  and  9  I?.  Mooro,  192.)     Roe  d.  IJushell 

In  the  Huntingdon  peerage  case,  the  At-  i).  Gore,    J,ancaster     Sntrirner    Assizes, 

lorney    (iener.il    admitted     alVidavits    of  17fi:;,    9  I*.    Moore,  1S7,  n.      Drown  w. 

jiersons   resident  iti    Leicestershirt',  as  to  Shelley,  E.  177<i,    9    15.  Mooro,  187,  n. 

the  reputation  of  the  county  :    Attorney  l!tO,  <-,i(cd    liy  Mr.  .Tustice   Ituller,    ST. 

'ieneral'.s  report.  Muni.  Peer.  359.     Ac-  Jv.  719.      Walker  i).  Wingllcld,  ISVes. 

cording  to  the  Scotch  l^aw,  Fame  is  ad-  44G. 

iiiissihie    in    questions  of  propinquity  of  (I)  P>y    I,ord    Kenyon,    and    Mr.    .1. 

lilood  :    Stair  Inst,   lib,  4,  t.    42,  s.    IG.  Bnller,  in  Rex  u.  ICriswell,  3 'i'.  R.  71f>. 

And  in   the  disput<;d  election  of  Scotch  Mr.  .1.  f'ulh^r  cites  an  authority   for    ad- 

I'eers,  1790,  the  House  of  I.ords  admit-  milling  declarations  of  persons  not  of  the 

ted  evidence,  that  is  was  the  gciuiral  he-  fatnily.      In    VVeijks  v.  Sparke,    I  M.  & 

lief  of  the  country,  that  a    claimant    was  S.  (i7!*,  Ee  I'lanc  says,  that   evidenci!  of 

lineal   descendant  and  lawful    heir  male,  persons  connected  with  the  family  is  re- 

and  that  lie  was    "  liahitc  and    repute  as  ceived.      13Vos.  514. 

such."     r'rinted  minuted  of  evidence,  p  (5)    IS  Ves.  446, 
136. 


220  Hearsay  Evidence.  [Ch.   13. 

cnssioii,  expressing  at  the  same  time  an  opinion  against  their 
admissibility.  (6) 
Limitation        q^jjQ  question  remained  thus  undecided,  when  it  came  be- 

lo  relatives.  ^  ,      ^  /•    , ,  i-wi  ■        ,  r      t   i 

lore  the  Court  oi  Gonnnon  Pleas,  ni  the  case  ol  Jo/mson  v. 
Lawso7i,  (7)  upon  a  motion  for  a  new  trial,  on  account  of  the 
rejection  by  Mr.  Baron  Graham,  of  the  declarations  of  a  de- 
ceased housekeeper,  that  a  certain  person,  under  whom  the 
plaintifl'  claimed,  was  the  heir  of  her  master.       The   Court 

[  *242  ]  were  unanimous  in  ^thinking  the  evidence  properly  rejected. 
Chief  Justice  Best  in  delivering  judgment  observed,  that  the 
admission  of  hearsay  evidence  in  these  questions  must  be  sub- 
jected to  some  limits,  otherwise  great  uncertainty  would  en- 
sue. The  limitation  to  the  declarations  of  relatives  or  mem-r 
bers  of  the  family  connected  by  blood  or  affinity,  afforded  a 
certain  and  intelligible  rule  ;  and  if  that  were  passed,  it  might 
be  necessary,  on  every  occasion,  to  enter  into  a  long  and  al- 
most endless  inquiry  as  to  the  degree  of  intimacy  or  confi- 
dence which  subsisted  between  the  family  and  the  party  who 
had  made  the  declaration.  (1)  In  Doc  d.  Stittoji  v.  Ridgway, 
the  dying  declaration  of  a  servant  of  a  family,  upon  matter  of 
the  ftm^ily  pedigree,  was  rejected.  (2)  And  in  Crease  v.  Bar- 
ret, (3)  it  was  said  by  the  Court,  that  in  cases  of  pedigree, 
the  hearsay  must  be  derived  from  relatives  by  blood,  or  from 
the  husband  with  respect  to  his  wife's  relationship,  and  that 
it  was  not  admissible  if  it  proceeded  from  servants  or  friends. 
The  case  of  Johnson  v.  Lawson  was  referred  to  as  having  esr 
tablished  a  clear  and  definite  rule  upon  the  subject,  {a) 

Principle  of  The  principle  upon  which  the  declarations  of  relatives  only 
are  to  be  received,  was  pointed  out  in    the  case  of  Voiules  v. 

(6)  Printed  report  of  trial,  second  is-  for  life  was  raised  by  the  testimony  of  a 
sue,  pp.  ISi),  192,  cited  y  D.  Moore,  living  witness,  vylio  resided  near  the 
188.  property,  and  who  spoke  to  liis  continij- 

(7)  2  Bing.  Sf).  9  B.  Moore,  183,  ed  absence  from  it.  This  witness  was 
S.  C,  and  see  VVhitelocke  v.  BaUer,  13  not  a  member  of  the  family.  But  he 
Ves.  514.  Gopdright  v.  ftloss,  Cowper,  pnly  proved  facts  vvithin  his  own  obser- 
594.  vation,  and  no  c|uestion  arose  as  to    ihp 

(I)  9  B.  Moore,  18S,      The  case  of  admissibility  of  his  deciarationd. 
Doe  V.  Deakin.  4  Barn.   &   Aid.    433,         (2)  4  B.  &  Aid.  53. 
does  not  impugn  the  doctrine  in  the  text.         (3)  1  Cr.  M.  &  R.  928. 
A  presumption  of  the  death  of  a  tenant 

(n)  Limitation  tn  relatives.  Hearsay  is  admitted  in  cases  of  pedigree  upon 
the  ground  of  necessity,  or  the  great  diliiculty,  and  sometimes  the  impossibility  of 
proving  remote  facts  of  this  sort  by  living  witnesses.  But  in  these  cases  it  is  on- 
ly adtnitted  when  the  tradition  comes  from  persons  intimately  cormected,  or  in  close 
relation  with  the  family,  or  from  sources  of  kindred  nature,  which,  in  a  getieral 
sense,  may  be  said  to  import  verity.  Per  Story,  J.  in  Ellicott  i'.  Pearl,  10  Pet.  R. 
412. 

Where  the  witnesses  are  not  connected  \yith  the  family,  have  no  perspnal  knowl- 
edge of  the  facts  of  which  they  speak,  and  have  not  derived  their  information  from 
persons  connected  or  particularly  acquainted  with  the  family,  but  speak  generally  of 
what  they  have  heard  or  understood,  such  evidence  is  insutiicient  for  that  purpose. 
1  J.  R.  37. 


Sect.   1.]  Matters  of  Pedigree.  221 

Young,  (4)  Lord  Erskiiie  said,  "  the  law  resorts  to  the  hear- 
say of  relatives  upon  the  principle  of  interest  in  the  person 
from  whom  the  descent  is  made  out.  The  declaration  is  ev- 
idence from  the  interest  of  the  person  in  knowing  the  connec- 
tions of  the  family.  Therefore  the  opinion  of  the  neighbour- 
hood of  what  passed  among  acquaintances  will  not  do."  (5) 
It  must  be  observed,  that  the  interest  here  spoken  of  is  only 
an  interest  to  acquire  knowledge,  and  is  clearly  distinguisha- 
ble from  an  interest  to  make  any  particular  statement  respect- 
ing the  facts. 

*It  seems  to  be  chiefly  upon  this  ground,  that  the  declara-  ^^l^^^"^' 
tions  of  a  deceased  husband  as  to  the   legitimacy  or   descent  husband 
of  his  wife,  are  admissible,  though  he  is  not  related  to  her  by  ^  ^q^q^ 
blood  ;  (1)  for,  it  was  remarked,  the  husband  has   an  interest  ^  ' 

in  the  succession  of  his  wife  to  real  property,  because  of  it  he 
might  become  tenant  by  the  curtesy,  as  well  as  to  personal 
property,  to  which  he  would  be  wholly  entitled.  (2)  An  ob- 
jection is  said  to  have  been  taken  in  one  case,  that  the  hus- 
band's declarations  were  inadmissible,  because  made  after  the 
death  of  the  wife,  when  he  was  no  longer  connected  with  her 
family,  but  it  was  overruled  upon  the  ground  that  his  knowl- 
edge must  have  been  acquired  whilst  he  was  married  to 
her.  (3) 

Besides,  however,  the  declarations  of  particular  members  of  General 
a  family,  the  general  reputation  of  the  family  is  sometimes  ad-  of  Uiefami- 
mitted  upon  questions  of  pedigree.       Thus,  in  Doe  d.  Ban-  ^y- 
ning  V.  Griffin,  (4)  in  order  to  prove  a  person    to  have    died 
unmarried,  a  relative  was   allowed  to  state,  that    according  to 
tJie  repute  of  thefainily,  he  had  died  in  the  West  Indies,  and 
that  she  never  heard,  in  the  family,  of  his  being  married. 

It  has  been   considered,   that  an  instrument   of  pedigree,  Acknowi- 
which  from  the  publicity  given  to  it,   must  be   presumed  to  orfa"miiy. , 


(") 


(4)  13  Ves.  140.  dall,  2  M.  &.  P.  20.      Doe  d.  Northey 

(.5)   13  Ves.  147.  v.  Harvey,  R.  &  M.  297.     That  a  per- 

(1)  Vovvles  «.  Young,  13  Ves.  140.  son  need  not  be  connected  with  both 
Doe  d.  Northey  v  Harvey,  1  Ry.  &  the  branches  of  the  family,  touching 
Moody,  297.  Doe  d.  Futter  u.  Randall  which  his  declaration  is  tendered  ;  see  2 
2  Moore  &  Payne,  20.  Russell  &  Mylne,  156. 

(2)  18  Veg.  147.  (4)  15  East,  294  ;    and  see  B.  N.  P. 

(3)  Vowles  V.  Young.  This  does  not  295.  StalTord  peerage  case,  printed  ev- 
appear  in  the  report  in  Vesey,  but  was  idence,  p.  145.  It  may  be  questioned, 
staled  by  Burrough,  .1.,  who  was  counsel  whether  this  general  repute  of  the  faiiii- 
in  the  cause,  9  15.  Moore,  194.  That  ly  could  be  proved  by  others  than  mein- 
the  declarations  of  a  party  connected  by  bers  of  it.     B.  N.  P.  295. 

marriage  are  receivable  ;    Doe  u.  Ran- 

(d)  See  .Tackson  v.  Cooley,  8  J.  R.  128.  In  the  case  of  .Jackson  w.  Boneham, 
15  .1.  R.  226,  a  sworn  copy  of  the  records  of  Stonington  ((."onnt.)  which  contain- 
ed the  date  of  the  marriage  of  the  parents  of  the  lessors,  and  the  time  of  the  birth  of 
the  children,  was  admitted.  Thompson,  J.,  says,  — "  We  do  not  perceive  any  ob- 
jection to  the  admission  of  a  sworn  copy  of  the  records  as  evidence  of  the  family." 
See  also  the  case  of  Jackson  v.  King,  5  Cowen,  237,  where  the  Court  admitted  a 


222  Hearsay  Evidence.  |Ch.   13. 

liave  been  adopted  by  the  Ihmily,  need  not  be  traced  to  any 
particular  member  of  it.  Thus  it  has  been  observed,  that  an 
engraving  upon  a  ring  worn  pnbhcly,  an  entry  in  a  Rible 
open  to  the  family,  an  inscription  n])on  a  tombstone  erected 
or  supposed  to  be  erected  by  the  family  and  open  to  all  man- 
[  *244  ]  kind,  a  ])edigrec  *hung  up  publicly  in  a  family  mansion,  are 
all  admissible  in  evidence,  without  knowing  who  may  have 
been  the  authors  of  them.  But  in  the  absence  of  such  pub- 
licity, they  must  be  shown  to  have  been  made  by  some  par- 
ticular member  of  the  family.  (1) 
Derinraiion  ^\iq  authority  of  the  casc  of  Hifrhani  v.  Ridffioay  is  open 
cheuror  to  much  observation.  It  was  decided  by  that  case,  that  an 
midwife.  entry  made  by  an  accoucheur  in  his  book  of  having  delivered 
a  woman  of  a  child  on  a  certain  day,  the  charge  for  which 
was  marked  "paid"  was  admissible  as  evidence  of  the  birth  of 
the  child  on  that  day,  on  the  trial  of  an  issue  as  to  his  age 
at  the  time  of  his  afterward  suffering  a  recovery.  (2)  («)  And 
an  opinion  was  mentioned,  in  the  course  of  the  judgment,  that 
an  entry,  or  the  declaration  of  a  midwife  as  to  the  time  of 
birth,  might  be  admissible,  on  the  ground  of  having  been 
made  of  a  matter  peculiarly  within  the  knowledge  of  the 
declarant.  (3)  But  the  ground  of  the  judgment  seems  to  have 
been  that  the  declaration  was  admissible,  because  the  entry  was 
against  the  interest  of  the  accoucheur  (4)  It  is  to  be  observed, 
that  the  rule  which  limits  hearsay  evidence  in  matters  of  ped- 
igree to  the  declarations  of  relatives  was  not,  at  the  time  of 
the  decision  in  question,  established,  nor  had  the  principle  of 
it  been  much  considered.  Neither  was  it  brought  before  the 
notice  of  the  Court  that  such  evidence  had  been  rejected  in 
the  Irish  case  oi  Annesly  v.  the  Earl  of  Anglesea,  ;  in  which 
case,  the  question  was,  whether  the  plaintiff  was  Lord  Al- 
tham's  legitimate  son,  and  it  became  material  to  inquire 
whether  Lady  Altham  ever  had  a  child.  To  prove  this,  the 
[  *245  ]  declaration  of  a  *midwife  that  she  had  delivered  Lady  Altham 

(1)  Monkton  r.  Attorney  General,  2  in  Iligliam  v.  Ridgvvay,  stated  by  11. 
Rassell  &  Mylne,  162.  In  the  Berke-  Bayley,  in  1  Cr.  &  J.  458.  Lord  l.ynd- 
ley  case  of  the  family  Bible,  4  Campb.  hurst,  V,.  B.,  in  1  Cr.  &  J.  4.56,  observes, 
401,  the  handwriting  was  proved.  Vi-  that  none  of  the  Judges  in  IJighain  r. 
de  supra.  Ridj;way,  put  that  case  on  the  ground  of 

(2)  Higham  v.  Ridgway,  10  East,  pedigree.  'J"he  case  may  also,  perhaps, 
109.  be  supported,  as  an  entry  in  the  ordina- 

(3)  By  Le  Blanc,  J.,  10  East,  120.        ry  course  of  professional  business,   vide 

(4)  Vide  infra,  where  the  subject  of  infra.  The  case  of  Higham  v.  Ridg- 
declarations  against  interest  is  consider-  way,  is  explained  by  Bayley,  B.,  in 
ed;  and  see  the  principle  of  the  decision     Glendow  v.  Atkin,  1  Cr.  &  M.  428. 

sworn  copy  of  certain  entries  of  baptisms  and  marriages  in  the  records  of  the  Re- 
formed Protestant  Dutch  Church  in  the  city  of  New  York,  to  prove  tlie  pedigree  of 
the  lessois  of  the  plaintiff. 

(a)  See  the  case  of  Crouch  v.  Evelith,  15  Mass.  305.  The  place  of  birth  can- 
not be  proved  by  hearsay  evidence.     4  Pick.  174. 


Sect.    l.J  Mailers  of  Pedigree.  223 

of  a  child,  was  offered  in    evidence,   but  was  held  inadmissi- 
ble. (1) 

In  the  same  case  of  Annesly  v.    tlie  Earl  of  Anglesea,  the  [^,g/"''""'" 
declaration  of  a  deceased  lady,  that  she  had  stood  godmother 
to  the  child  of  Lord  Altham,  was  also  after   argument  reject- 
ed. (2) 

On  a  question  of  legitimacy  depending  upon  the  validity  of  ^.^*''|g"""" 
a  marriage,  Lord  Kenyon  admitted  evidence  of  a  declaration  man  as  to 
by  the  clergyman,  that  a  friend  of  the  wife  had  forbidden  the  "'^'fage- 
banns  ;  but  the  evidence  seems  to  have  been  received,  on  the 
ground  of  its  being  a  confession  by  the  clergyman,  that  he 
had  married  the  parties  without  the  banns  having  been  duly 
published.  (3)  And  a  clergyman's  declaration  as  to  the  fact 
of  marriage,  when  it  was  not  against  his  interest,  has  been 
held  inadmissible.  This  was  in  the  case  of  the  Berkeley 
peerage,  where  it  being  proposed  to  give  in  evidence  declara- 
tions of  a  deceased  clergyman,  who  was  the  domestic  chap- 
lain of  the  Earl  of  Berkeley  Avhen  the  claimant  was  born,  that 
he  had  married  the  Earl  of  Berkeley  and  the  claimant's  mother 
in  the  parish  church,  of  which  he  (the  clergyman)  was  vicar, 
and  also  his  declaration  that  the  claimant  was  legitimate,  the 
opinion  of  the  Judges  was  taken  on  the  admissibility  of  such 
evidence  on  the  trial  of  an  ejectment  in  the  Courts  below,  and 
all  the  Judges  present  agreed  that  the  evidence  could  not  be 
admitted.  (4) 

*Parish  registers  are  not  evidence  of  the    time  or    place   of  |5 ""■.•'*' '" 

~        .  ^  Re<;isler. 

birth.     For  as  it  is  not  the  duty  of  the   minister  to  register  r  *246  ] 
these  matters,  the  register  is  not  admissible,  upon  the    princi- 
ple hereafter  to  be  considered,  of  being  a   public    document, 
and,  as  private  hearsay  upon  a  matter  of  pedigree,  it  does  not 
purport  to  be  derived  from  the  statements  of  relations.  (1) 

(1)  17  How.  St.  Tr.  1157.  parish    church  of  which    such    chaplain 

(2)  17  How.  St.  Tr.  1160.  was  vicar,    and   declarations   that  A.  B. 

(3)  Sianden  v.  Standen,  1  Peake,  N.  was  the  legitimate  son  of  his  reputed 
P.  C.  34.  father.     According  to  the  practice  of  the 

(4)  Printed  IMinute.s  of  Evidence,  Courts  helow,  would  such  declarations 
1811,  p.  655.  Sir  S.  Roniilly  proposed  as  to  the  legitimacy  of  A.  B.,  or  the  fact 
to  call  Mrs.  Tucker,  to  prove  declara-  of  marriage  he  received  in  evidence?" 
tions  made  by  the  late  Mr.  llupsman.  The  Lord  Chief  Baron  delivered  the 
fir5t  with  re.spect  to  the  legitimacy  of  the  unanimous  opinion  of  the  judges  present, 
claicnant;  and  secondly,  as  to  his  having  that  such  declarations  as  to  the  legitima- 
performed  the  ceremony  of  a  marriage  cy  of  A.  B.,  or  the  fact  of  marriage 
between  the  late  F.arl   and  the  Countess  would  not  be  received  in  evidence. 

of  Berkeley.  Counsel  being  heard  ^)ro  (1)  It  would  seem  that  proof  would 
and  con,  the  following  question  was  put  be  reciuircd,  that  the  statement  of  the 
to  the  judges  :  "  Upon  the  trial  of  an  minister  was  made  by  the  direction  of 
ejectment,  in  which  it  became  necessary  relatives;  but,  with  this  proof,  that  the 
to  prove  the  legitimacy  of  A.  B.,  the  evidence  would  be  sufficient.  It  is  also 
plaitiiifl' ofiered  to  give  in  evidence  the  to  be  observed,  that  the  evidence  of  bap- 
declarations  of  a  deceased  clergyman,  lisrri,  connected  with  other  evidence, 
who  was  the  domestic  chaplain  of  A.  may  raise  a  presumption  as  to  the  lime 
B.'s  reputed  father  at  the  time  of  A.  H.'s  of  birth.  .Sec  VVithen  w.  Law,  3  St. 
birth,  that  he  had  married  the  reputed  Ca.  63.  Rex  v.  (^lapham,  4  C  &  P. 
father  and  the  mother  of  A.   B.   in  the  29.     Kcx  r.  North  Pclherlon,  5  B.  it  C, 


224  Hearsay   Evidence.  [CIi.   13. 

It  appear  then  that  in  the  cases,  the  authority  of  which  has 
not  been  overruled,  where  the  hearsay  of  strangers  has  been 
admitted,  the  declarations  possessed  some  distinct  ground   of 
admissibility ;  and  if  the  decision  in    Johnson  v.  Laioson  is 
to  be  considered  conclusive,  it  seems  settled,  that,  on  the  foot- 
ing of  hearsay  in  questions  of  pedigree,  the    declarations  of 
persons  not  relations  are  inadmissible,  even  though  made  res- 
pecting tacts  peculiarly  within  their  knowledge,  or  under  the 
most  solemn  circumstances.  (2) 
RtT^u»«tion        It  )ias  been   thought,   that    notwithstanding  the   rule  laid 
as  "to '^wer-  doMHi  for  excludiug  declarations  not  made   by  relatives,    the 
ni  rd4ik)n-  cvideucc  of  Strangers  as  to  general  reputation  is  receivable  in 
^  ''*'  matters  of  pedigree  ;  but  that  the  evidence  must  be  of  a  gen- 

eral nature,  as,  tliat  A;  was  conmionly  reputed  to  be  the  son 
of  B.,  or  the  father  of  C.  ;  the  same  latitude  not  being  allow- 
[  *247  ]  ed  as  in  the  *case  of  family  declarations.  There  does  not 
appear,  however,  to  be  any  sufficient  reason  or  authority  for 
excepting  such  evidence,  from  the  rule  under  consideration, 
(unless,  indeed,  the  evidence  frequently  given  of  marriages  be 
thought  to  be  of  this  nature.)  It  is  frequently  said,  that  gen- 
eral reputation  and  the  common  opinion  of  the  world  are  ad- 
missible in  ordinary  cases,  to  prove  the  fact  of  parties  being 
married.  But  the  evidence,  usually  produced  in  such  cases, 
cannot  be  properly  called  hearsay  evidence,  as  it  consists  of 
original  evidence  of  facts  or  circumstances,  as,  evidence  of 
the  parties  being  received  into  society  as  man  and  wife,  of 
respectable  families  in  the  neighbourhood  having  visited  them, 
of  tile  woman  being  churched  after  childbirth ;  all  Avhich  cir- 
cumstances show,  that  the  parties  demeaned  themselves  as  if 
they  were  married,  and  were  not  living  in  a  state  of  concubin- 
age. Thus  the  ground  of  a  presumption  is  afforded,  that  the 
parties  were  actually  married.  (1) 

508.     It  has  been  held,  that  a  baptismal  285.  See  also  the  case  of  I\Ir.  Twislelon 

register,  in  which  a  party  is  described  as  claiming    the   barony  of  Say  and    Sele, 

the  illegiliinute  son  of  his  mother,  is  ad-  where,    in  proof  of  the  n)arri:ige  of  his 

missible  evidence  on  the  trial  of  an  issue  faiiier  and  niotiier,  he  relied  on   the  fact 

as  to  his  illegitimacy.     Cope  v.  Cope,  1  of  llieir   having   been    visited    by  C.  J. 

Rl.  &  Ro.  269.     IMorris  v.  Davies,  3  C.  Willes,  and  several  families  of  respecta- 

&  P.  215,  427,    which    decisions   seem  bility.       Mr.   Serjeant   Hill's  collection, 

ndt    to    be   governed   by    the    principle  vol.  26,  p.  169.  l{ead  v.  Passer,  1  Esp. 

addpted  in  respect  of  an  official  statement  213.     Leader  w  Barry,   1   Esp.  353.      1 

in  registers  as  to  the  time  of  birth.     The  I'oUg.   174.      Uervey  u.  Hervey,  2  W. 

time  of  marriage  is  an  official  statement.  Bl.  877.     Ke.K  v.  Bromley,  6  T.  R.  330. 

Doe  V.  Barnes,  1  IM.  i<c  Ro.  389.      Vide  Doe  d.  Fleming  v.  Fleming,  4  Bing.  266. 

in/ra,  where  the  evidence  of  parish  reg-  12   B.  IMoore,    500,    S.  C,    where    the 

isters  is  more  particularly  considered.  proof  of  legitimacy  depended  on  the  fact 

(2)  See  Doe  d.  Sutton  v.  Ridgway,  4  of  marriage,  and  where   the  father  was 

Barn.  &  Aid.  53,  cited  supra.  alive.     In  Evans  v.  Morgan,  2  Cr.  &.  J. 

(1)    Vide  infra,  the  chapter  on  Pre-  453,  a  witness  stated,  that  he  had  heard 

stiniptive  Evidence.     See  the  summing  that  .\.  had  married  B.,  and  it  was  held 

«p  of  Abbot,  C.  J.,  in  Beer  v.  Ward,  re-  lliat  this  was  sufficient  jiriina  facie  evi- 

port  of  trial  on  second  issue,  pp.  294,  deuce  of  a  marriage. 


Sect.   1.] 


Matters  of  Pedigree. 


225 


It  has  been  decided,  that  before  the  declaration  of  a  rela-  'f^'^"?"; 
tive  can  be  admitted  in  evidence,  his  relationship  with  the  ciaranrto 
family  must  be  proved  aliunde,  that  is,  it  must  be  established  ^^n^l^J^^'^ 
by  extrinsic  proof,  and  not  out  of  the  declaration  itself.  Thus, 
in  the  Banbury  peerage  case,  the  Judges  held,  upon  a  ques- 
tion put  to  them  by  the  House  of  Lords,  that  a  bill  in  Chan- 
cery, purporting  to  be  filed  by  the  next  friend  of  an  infant, 
such  next  friend  therein  styling  himself  the  unele  of  the  in- 
fant, and  depositions  in  the  same  cause  made  by  persons  styl- 
ing themselves  relatives,  servants,  and  medical  attendants  of 
the  family,  were  not  evidence,  that  the  parties  respectively 
sustained  those  characters,  *so  as  to  let  in  such  bill  and  depo-  [  *248  ] 
sitions  on  the  footing  of  declarations  (supposing  them  to  be  in 
other  respects  admissible)  in  a  case  when  the  legitimacy  of  the 
infant  was  in  question.  (1)  And  in  the  late  case  of  the  Leigh 
peerage,  where  a  witness  proved  that  he  had  heard  the  dec- 
larant say,  that  he  was  a  member  of  the  family,  the  House  of 
liords  ruled  the  evidence  insufficient,  holding  that  the  rela- 
tionship between  the  family  and  the  party  making  the  declar- 
ation must  be  first  proved  upon  oath,  and  that  a  mere  state- 
ment of  the  fact  by  the  party  himself  was  not  evidence.  (2) 
But  where  a  person  is  connected  with  A.  by  evidence  dehors, 
his  declaration  touching  relationship  between  A.  and  B.  is  ad- 
missible, without  connecting  the  declarant  with  B.,  otherwise 
the  declaration  would  be  manifestly  superfluous,  as  only  prov- 
ing the  very  fact  already  established.  (3) 

Where  the  instrument   of  pedigree    depends   for  its  effect 


(I)  2  Selwyn's  N.  P.  754.  By  Lord 
Eldoii,  in  the  Berkeley  case,  4  Campb. 
419.  The  Oanbury  and  Berkeley  peer- 
age cases  upon  this  point  were  referred 
to  by  Mr.  B.  Bayley  in  Davies  v.  Mor- 
gan, 1  Cr.  &  J.  591,  where  it  was  held, 
that  the  character  of  the  evidence  must 
be  established  before  an  entry  is  read. 
In  that  case,  however,  the  document  did 
not  describe  the  capacity  of  the  person 
whose  declaration  was  important.  See 
Adamtliwaite  v.  Synge,  1  Stark.  C.  183, 
that  the  custody  of  records  is  not  to  be 
proved  cxviseribusjudicii.  In  Doe  d. 
Futter  V.  Randall,  Best,  C.  .1.,  s<»ys, 
with  reference  to  the  facts  of  that  case, 
"  If  there  were  no  other  evidence  tlmn 
the  declaral'rons  of  .lolin  to  show  that 
.[ames  was  a  member  of  the  family,  they 
could  not  have  been  received  ;  as  that 
would  be  carrying  the  rule  as  to  the  ad- 
missibility of  hearsay  evidence  further 
than  has  ever  yet  been  done,  and  would 
allow  a  party  to  claim  an  alliance  with  a 
family  by  tlic  bare  assertion  of  it."  In 
Monkton  v.  Attorney  General,  2  Russ. 
&  Mylne,    156,    the    Lord   Chancellor 

20 


says,  that  "  in  order  to  admit  hearsay 
evidence  in  pedigree,  you  must  by  evi- 
dence dehors  the  declarations,  connect 
the  person  making  them  with  ihe  family. 
See  also  by  Bayley,  J.,  Rex  *.  All 
Saints,  7  P.  &  C.  7SS. 

(2)  Printed  Minutes  of  Evidence, 
1829,  p.  307.  It  would  seem,  howev- 
er, that  in  proving  ancient  pedigree,  the 
rule  which  the  authorities  in  the  text  ap- 
pear to  establish,  would  be  too  exclusive, 
as  the  relationship  of  ihe  declarant  with 
the  family  is  often  a  fact  of  equal  antiq- 
uity, and  equally  dillicult  to  prove  with 
the  relationship,  which  is  the  subject  of 
the  declaration.  And  upon  other  mat- 
ters it  is  very  comtnoii  to  admit  the  de- 
clarations cf  copyholders,  stewards,  col- 
lectors, and  persons  in  other  capacities, 
upon  the  asinn)ption  that  they  stood  in 
the  situation  in  which,  upon  the  face  of 
particular  instruments,  they  purport  to 
stand,  nde  infra,  declarations  respect- 
ing general  rights  ;  and  Declarations 
against  Interest. 

(3)  Monkton  v.  Attorney  General,  2 
Ruis.  &  M.  157. 


Family  ac- 
knowledg- 
ments pre- 
sumed. 


226  Hearsay  Evidence.  [Ch.   13. 

[*  249  ]  *on  family  acknowledgments,  ( 1)  it  lias  been  seen  that  it  need 
not  be  traced  to  any  particular  member  of  the  family.  Thus 
it  has  been  said,  that  a  charter  of  pedigree  hung  up  in  a 
family  mansion  need  not  be  proved,  by  evidence  dehors^  to 
have  been  prepared  or  written  by  any  member  of  the  family ; 
but  that  this  would  be  necessary  in  the  case  of  a  pedigree  not 
hung  up,  though  found  in  the  repository  of  one  of  the  family, 
for  Avant  of  that  publicity  which  is  requisite  to  establish  it's 
character  as  the  subject  of  family  acknowledgement.  (2) 

Hearsay  It  is  uot  ucccssary  that  the  hearsay  evidence,  which  is  ad- 

nol  contem-        .,  .  r  i-  iiii^ 

poraiicous.  mittcd  upou  qucstious  01  pedigree,  should  be  contemporane- 
ous with  the  facts  to  which  the  evidence  relates.  This  would 
prevent  the  evidence  from  ever  going  back  beyond  the  life- 
time of  the  person  whose  declaration  is  to  be  adduced  in  evi- 
dence. And  the  rule,  if  it  were  so  limited,  would  not  answer 
the  exigency  for  which  it  was  established.  (3) 
?f  hearsa'r  There  are  several  other  rules  applicable  to  hearsay  evidence 
ill  cases  of  ill  matters  of  pedigree.  But  as  the  like  rules  apply  to  the 
pedrgree.  subject  next  to  be  considered,  namely,  that  of  hearsay  state- 
ments upon  matters  of  public  or  general  rights,  it  will  be  con- 
venient to  postpone  the  consideration  of  them,  in  order  that 
they  may  be  illustrated  by  examples  from  both  classes  of  ca- 
ses. It  will  be  sufficient  to  state,  generally,  in  the  present 
place,  that  hearsay  declarations  upon  matters  of  pedigree  are 
not  receivable,  unless  made  ante  litem  tnotam  ;  but  that  it  is 
no  objection  to  them,  that  the  persons  making  them  were  in 
pari  jure  with  those  who  tender  them  in  evidence. 

[  *250  ]  *Section  II. 

Hearsay  Evidence  vpoii  Mattel's  of  pnhlic  or  general  Interest. 

H«'arsav  Another  subject,  on  which  statements   are  receivable  upon 

111  mailers     the  Credit  of  deceased  persons,  who  have  neither  been  sworn 
of  general    jq  \\^q  trutli  of  thosc  Statements,   nor  been  cross-examined  re- 

interesl.  .  ,  .    '  /•         i  i  •  , 

specting  them,  relates  to  certain  matters  of  public  or  general 
interest,  of  which  the  origin  in  many  cases,  from  their  very 
nature,  antecedent  to  the  time  of  what  is  called  legal  memory 
and,  in  the  generality  of  instances,  can  be  expected  only  to 
be  found  in  times  beyond  the  reach  of  living  testimony.  The 
the  excep-  same  necessity,  therefore,  exists  for  resorting  to  hearsay  evi- 
tioii.  dence,  as  was  pointed   out  in    treating  of  pedigree.       With 

respect  to  pedigree,  indeed,   one  reason  for  admitting  hearsay 
evidence  of  family  incidents  is,  that  a  knowledge  of  them  is 

(i)  Supra,  p.  243.  where  the  example  is  put,  that  thedecla- 

(2)  Monkton  «.  Attorney  General,  2  ration  of  a  person  as  to  the  maiden  name 
Ru88.  &.  Mylne,    163.  of  his  grandmother  would  be  receivable. 

(3)  Monkton  ».  Attorney  General,  ib. 


Sect.  2.  J  Matters  of  General  Interest.  227 

confined  to  very  few  persons, — which  cannot  be  said  of  pub- 
he  rights.  But  it  is  to  be  observed,  however  generaUy  known 
the  origin  of  matters  of  pubhc  interest  may  once  have  been, 
their  usual  antiquity  and  the  undefined  generahty  of  their  na- 
ture render  it  more  difficult  to  discover  any  testimony  relating 
to  them,  not  in  the  nature  of  hearsay,  than  where  pedigree  is 
the  subject  of  inquiry. 

.  It  is  proposed  to  follow  the  same  course  as  was  adopted  in 
treating  of  pedigree,  and  in  the  first  place  to  illustrate  by  ex- 
amples the  nature  of  matters  of  public  and  general  interest  ; 
secondly,  to  treat  of  the  forms  in  which  such  hearsay  evidence 
is  usually  presented  ;  and  lastly,  of  the  qualifications  with 
which  it  is  received. 

On  questions  respecting  a  manorial  custom,  (l)a  parochial  Examples 
modus,  (2)  a  boundary  between  parishes  or  manors,  (3)  a  cus-  of  JJlTbirc  or 
tom  *of    a  corporation    to    exclude    foreigners   from    trading  general  in- 
within  a  town,  (1)  a  right  claimed  by  a  corporation  to  collect  r  *251  1 
tolls  on  a  public    road,  (2)  respecting    the   jurisdiction    of  a 
Court,  whether  it  be  or  be  not  a  Court  of  record,  (3)  and  the 
like — in  which  the  public  are  concerned,  as  having  a  commu- 
nity of  interest  from  residing  in  the  same  neighbourhood,   or 
being  entitled  to  the  same  privileges,  or  being  subject  to    the 
same  liabilities, — common  reputation  and  the   declarations  of 
deceased  persons,  asserting  or  disclaiming  the  right  at    issue, 
are  admissible  in  evidence. 

From  the  examples  just  mentioned,  it  will  be  seen  that  the  ^f,"^""^' 
tevm  public,  as  applied  to  this  subject,  is  not  to  be  understood 
in  it's  literal  sense  ;  it  has  been  defined  to  be  synonymous 
with  general,  that  is,  what  concerns  a  multitude  of  persons.  (4) 
The  leading  authority  upon  this  subject  is  the  case  of  Weeks 
V.  Sparks,  (5)   which  was  an   action  for   a  trespass   on   the 

(1)  Uenn  v.  Spray,  1  T.  R.  466,  C.  204.  Rogers  d.  Wood,  2  Barn.  & 
custom  of  descent.       Itoe  v.  Parker,    5     Adolph.  245. 

T.  R.  26,  31.     It  is  there  said,  that  tra-  (4)   Per  Rayley,  J.,  1    Maule  &  Selw. 

ditioa  and  received  opinion  are  evidence  690,  and  see  Crease  v.  Barrett,  I  Cr.  M. 

of  the  les  loci.  Doe  d.  Foster  v.  Jisson,  &   H.  931. 

12  Last,  62.  (5)    1    Maule  .t  Selw.    e79.       It    has 

(2)  Chapman  W.Smith,  3  Gvvill.  854.  heon  questioned  wiielher  evidence  of 
2  Ves.  Sen.  512,  S.  C.  Ilarwood  v.  reputation  be  receival)le  upon  a  trial  con- 
Sims,  1  Wightw.  112.  cerning  the  liabihty  of  an    individual  to 

(3)  Nicholls  w.  Parker,  14  East,  331 ,  repair  a  public  bridge  ratione  tenure 
n.  1  Maule  ^  Selw.  81.  Steel  v.  (-"ase  of  Kolham  bridge,  tried  at  Lincoln, 
Pricket,  2  Stark.  C.  406.  Plaxton  «.  Spr.  Ass.  a.  d.  1832.  There  is  a  dic- 
Dare,  10  Barn.  &c  Cress.  17.  Coombs  turn  of  Mr.  .T.  Patteson  in  Rex  v.  An- 
V.  Coelher,  1  Mo.  'Cl  Mai.  398.  Barnes  trobu^,  2  Ad.  k  KIlis,  794,  against  the 
V.  Mawson,  1  Maule  &,  Selw.  81,  boun-  admission  of  hearsay  in  such  a  case.  In 
dary  of  the  new  Uind  within  a  manor.  the  case  of  the  city  of  London  v.  Clarke, 

(1)  Davies  w.  Morgan,  1  Cromp.  &  Carth.  18! ,  evidence  of  verdicts  was  re- 
Jerv.  593.  ceived  in   a  matter  alfecting  only  the  iii- 

(2)  Brett  V.  Beales,  1  Mo.  &  Mai.  terests  of  the  owners  of  west  country 
416.  City  of  London  w.  Clarke,  Carth.  barges.  And  see  Chapmnn  v.  (."owlan, 
18  L     B.  N.  P.   233.  13  Last,  8,  as  to  evidence  of  rnpulation 

(3)  Brainc  v.  Uew,  2  Peake,    N.    P      upon  a  ([URSlioti  of  a    i)re«oripliv(3    rifdit 


228  Hearsay  Evidence.  [Ch.   13. 

jjlaiutill's  close,  parcel  of  a  common,  &c.  ;  the  defendant  jus- 
tified for  a  prescriptive  right  of  common  at  all  times  over  the 
place,  and  the  plaintiff  in  his  replication  prescribed  to  use  the 
[  *252  J  place  *for  tillage,  &c.,  ([ualifying  the  defendant's  general  right. 
To  support  this  prescriptive  right  of  tillage,  the  plaintiff  offer- 
ed evidence  of  reputation,  which  was  received  at  the  trial ; 
and  the  Court  of  King's  Bench  were  of  opinion,  that  it  had 
■been  properly  admitted,  on  the  ground  that  the  right  claimed 
by  the  prescription,  was  yet  an  abridgment  of  the  general 
right  of  common  over  the  waste,  and  affected  a  large  number 
of  occupiers  within  the  district.  Mr.  Justice  Bayley,  in  de- 
livering his  judgment  in  this  case,  says,  "  I  take  it  that  where 
the  term  public  right  is  used,  it  does  not  mean  public  in  the 
literal  sense,  but  is  synonymous  with  general ;  that  is,  what 
concerns  a  multitude  of  persons,  now  this  is  a  general  right, 
exercised  by  a  variety  of  persons,  though  not  a  public  right 
of  common."  And  Mr.  Justice  Dampier  observes,  that  "it  is 
not  to  be  disputed,  that  in  public  rights,  reputation  is  admissi- 
ble ;  and  the  rule  has  been  extended  to  other  rights  which 
cannot  be  strictly  called  public,  such  as  manors,  parishes,  and 
a  modus.  A  modus  is,  strictly  speaking,  a  private  right,  but 
it  has  been  considered  as  public,  so  far  as  regards  the  admis- 
sibility of  this  species  of  evidence,  because  it  affects  a  large 
number  of  occupiers  within  a  district.  Here  the  right  claim- 
ed goes  to  abridge  the  rights  of  all  the  persons  concerned  over 
a  large  district  of  common :  and,  therefore,  I  think  evidence 
of  reputation,  is  admissible."  (1) 
District  In  the  case  of  Rudd  v.  WrigJtt  (2)  in  a  motion  for   a  new 

i^"^2«Q  1  *tnal,  on  an  issue  from  the  Court   of  Exchequer,    to  try  the 
*-  •'  validity  of  a  modus,  which  was  claimed  in  respect  of  a  dis- 

trict, (not  being  a  legal  division  of  the  country,  as  a  hundred, 
parish,  vill,  or  hamlet,)  Lord  Lyndhurst  was  of  opinion,   that 

affecting  all  the  copyholders  of  a  maner.  Ex.  11  July,  1S32.  On  the  admissioa 
The  existence  of  a  manor  may  be  prov-  of  hearsay  evidence  to  prove  moduses, 
ed  by  reputation,  as  by  a  description  in  see  Robinson  v.  Williamson,  9  P.  R. 
an  old  deed  :  Curzon  «.  Lomax,  5  Esp.  136,  per  Dampier,  J.,  in  Weeks  v. 
60.  Steel  v.  Pricket,  2  St.  466.  Evi-  S.park,  supra,  p.  252.  Williamson  v. 
dence  of  reputation  is  admissible  in  the  Tliompson,  9  Pr.  186,  a  township  mo- 
case  of  lolls  :  Brett  v.  Beales,  I  Mo.  &  dus.  Doninson  v.  Elsley,  1  M'Clel.  & 
M.  416,  though  the  right  is  claimed  by  Y.  1.  A  modus  for  a  district  consisting 
grant  or  prescription.  Lord  Kenyonap-  of  274  acres.  That  there  is  no  differ- 
pears  to  have  alluded  to  cases  of  this  de-  ence  hetween  a  modus  and  any  other 
scription  in  Reed  v.  Jackson,  1  Eastj  prescription  in  lieu  of  tithes,  per  Wood, 
356,  where  he  speaks  of  "  public  pre^  B.,  4  Pr.  19.  In  Chapman  v.  Smith,  2 
Bcription."  Ves.  Sen.  506,  the  Lord  Chancellor  con- 

(1)  Hearsay  evidence  is  also  admissi-  sidered  that  tradition  respecting  a  modus 
ble  upon  matters  of  general  history,  as  applicable  to  the  "  marsh  lands"  of  a 
This  subject  will  be  considered  in  Sect,  parish  would  be  receivable.  In  White 
I.,  upon  Public  Documentary  Eii-  v.  Lisle,  4  Madd.  214,  in  the  case  of  a 
<ience,  where  books  of  history  are  notic-  farm  modus,  the  Vice  Chancellor  said, 
«d.  Upon  a  custom  in  restraint  of  trade  :  that  reputation  was  admissible  in  case;* 
Uavies  v.  Morgan,  1  Tyrvv.  457.  of  private  right  where  a  class  or  district 

(2)  Before  Lord  Lyndhurst  in  Equity  of  persons  was  concerned. 


Sect.  2.]  Matters  of  General  Interest.  229 

evidence  of  reputation  in  favour  of  the  modus  was  properly 
received  on  the  trial,  upon  the  authority  of  the  case  of  Weeks 
V.  Sparks;  (1)  the  district  comprising  a  great  number  of 
farms,  and  extending  over  more  than  two  thousand  acres,  and 
the  questions  involving  and  applying  to  a  great  number  of 
persons. 

Whether  evidence  of  reputation  be  admissible  upon  a  ques-  ^^™  '"°' 
•tion  of  a  farm  modus,  appears  to  be  a  point  not  perfectly  set- 
tled. It  has  been  generally  understood  in  the  Exchequer,  that 
the  evidence  is  inadmissible.  (2)  In  an  ancient  case,  it  was 
received  ;  and  also  in  some  modern  cases,  where  however  the 
point  was  not  much  considered.  (3) 

Upon  the  admissibility  of  hearsay  evidence  as  proof  of  pre-  ^f"f^^  '" 
scriptive  rights  strictly  private,  and  not    affecting  any  public  rights, 
or  general  interest,  there  has  been  considerable  difference   of 
opinion.       The  Court  of  King's    Bench  was   equally  divided 
upon  the  point  in  the  case  of  Morewood  v.  Wood,   (4)  where 
*the  question  related  to  a  prescriptive  right,  annexed  to  a  par-  [  *254  ] 
ticular  estate,  of  digging  stones  on  a  waste.   And  a  book  of  au- 
thority lays  it  down  broadly,  that  in  questions  of  prescription 
it  is  allowable  to  give    hearsay  evidence,    in   order   to   prove 
general  reputation,  and  that  therefore  where  the  issue  Avas  on 
a  right  of  way  over  the  plaintiff's  close,  the  defendants   were 
admitted  to  give  evidence  of  a  conversation  between    persons 
not  interested,  then  dead,  wherein  the   right  to  the    way  was 
acknowledged.  (1) 

(1)  Supra.  Wooley  t>.  Browniiiii.    1    IM'CIel.    317. 

(2)  Per  Lord  Lyndhiii-st  in  Wright  jj.  In  Bullen  v.  Mitchell,  4  Dow.  P.  C, 
'Rudd,  ubi  supra.  But  liis  Jjordship  which  related  to  a  farm  modus,  much 
stated  that  he  was  willing  to  hear  the  documentary  evidence  was  adduced, 
([uestion  argued.  In  Wells  w.  Jesus  Col-  and  was  treated  as  evidence  of  reputa- 
lege,  7  C.  &  P.  284,  reputation  concern-  tion;  but  most  of  the  documents  were 
ing  a  farm  modus  appears  to  have  been  of  a  public  nature.  In  Eagle  on  Tillies, 
rejected.  It  is  to  be  observed,  that  an  vol.  2,  p.  439,  there  is  a  learned  argu- 
exemption  from  the  iiability  to  which  ment,  to  prove  that  evidence  of  repula- 
thc  rest  of  the  parish  was  sui)ject,  would  lion  is  admissible  upon  questions  of  farm 
•be  likely  to   create  general   observation  moduses. 

and  remark.  (4)    14    East,    327.     Lord    Kenyon, 

(3)  Webb  V.  Potts,  Noy.  44.  In  C.  J.,  and  Ashurst,  .1.,  against  the  evi- 
White  V.  Lisle,  4  Madd.  214,  this  case  dence  ;  Buller,  J.,  and  Grose,  J.,  for  it. 
was  said  to  stand  alone,  and  to  be  too  It  did  not  appear  whether  the  prescrip- 
loose  to  be  relied  on.  The  Vice  Chan-  live  right  claimed  was  in  derogalio!i  of 
cellor  added,  that  there  was  no  necessi-  the  rights  of  common  in  the  copyhold- 
ty  to  resort  to  evidenc|  of  reputation  in  ers  ;  in  which  case  it  would  seem  that 
the  case  of  a  farm  modus,  because  proof  evidence  of  reputation  was  admissible, 
of  a  fixed  payment  for  a  long  period  was  Weeks  v.  Sparke,  I  Maule  &  Selw.  679. 
evidence  of  a  modus.  The  same  argu-  (1)  Bull  N.  P.  295,  citing  Skinner  v. 
ment  would,  however,  apply  to  parochi-  Lord  Bellamont,  Worcester,  1744. 
al  moduses,  and  other  customary  pay-  And  see  the  opinions  of  Buller,  J.,  and 
ments,  where  reputation  is  clearly  admis-  Grose,  J.,  in  Morewood  r.  Wood,  14 
sible.  In  Doninson  v.  Elsley,  3  Lag.  &  East,  330.  n.  ;  also  Grose,  J.,  3  T.  R. 
Y.,  lithe  cases,  1396,  n.,  evidence  of  709.  In  Price  w.  Littlewood,  3  Camp, 
reputation  in  the  case  of  a  farm  modus  2S8,  Lord  Ellenborough  admitted  proof 
was  read  de  bene  esse,  and  similar  ovi-  of  entries  in  a  parish  book,  as  evidenco 
^unce  appears  to  have  been  received  in  of  the  reputation  of  the  parish  respecting 


230 


Hearsay  Evidence. 


[Ch.   13. 


Private  pre-  jj^jj  tliere  are  many  ercat  authorities  on  the  other  side,  (2) 
lighis.  *It  IS  to  be  observed,  that  the  receiving  of  hearsay  evidence 
[  *255  ]  is  founded  on  a  principle  of  necessity,  in  consequence  of  the 
anti(juity  frequently  belonging  to  particular  inquiries,  and  that, 
although  a  custom  must  necessarily  be  immemorial,  it  is  as- 
suming the  question  in  dispute,  to  say  that  a  private  right  of 
way,  or  common,  and  the  like,  is  prescriptive  and  immemori- 
al. Even  supposing  a  private  right  to  have  necessarily  origina- 
ted, if  at  all,  before  the  reign  of  Richard  I.,  yet  it  may  reasona- 
bly be  expected,  that  in  the  instance  of  any  private  right,  the 
case  should  be  sufhciently  established  by  modern  use  without 
recourse  to  evidence  of  reputation  ;  whereas  a  greater  latitude 
may  be  allowed  in  the   instance   of  public  rights,  which  it  is 


the  private  right  of  pew.  But  he  also 
.•is>;iifiied  as  a  reason  for  adfniltin<T  tlie 
evidence,  tliat  the  entries  were  niaiJe  hy 
churchwarciens,  upon  a  subject  witliiii 
the  scope  of  their  official  authority.  It 
may  he  ()l)served,  that  the  ri^ht  in  ques- 
tion atlected  the  general  rights  of  parish- 
ioners. In  Davies  v.  Lewis,  2  Chitt. 
53S,  hearsay  evidence  was  admitted  in 
ii  question  of  private  right,  as  to  the 
point  whether  a  particular  place  was 
parcel  of  a  sheep-walk.  IJut  the  case 
vviis  compromised  and  not  much  argued. 
In  Weeks  v.  Sparke,  1  Maule  &  Selw. 
G90,  there  is  an  obiter  dictum  of  l\Ir. 
Justice  Barley,  that  "  in  cases  of  pre- 
scription,which  must  have  originated  be- 
yond the  time  of  legal  memory,  and  of 
whicii  it  is  impossible  to  establish  the 
claim  by  evidence  of  the  grant,  reputa- 
tion seems  to  he  admissible."  In 
Barnes  v.  Rlawson,  1  Maule  and  Selw. 
77,  evidence  of  reputation  was  received 
as  to  what  was  neiv  land  within  a  ma- 
nor. In  Rogers  v.  Allen.  1  Camp.  310, 
judgments  were  admitted  in  a  case  of 
prescriptive  right.  But  the  evidence 
was  in  the  nature  of  acts  of  possession, 
and  the  like  observations  may  apply  to 
the  evidence  of  court  rolls,  and  the  judg- 
ment and  allowances  in  Eyre,  in  Bid- 
dulph  V.  Ather,  2  Wils.  23.  In  Wil- 
liams V.  Goodchild,  Nov.  23,  1S24,  2 
Eagle  on  Tithes,  p.  440,  Leach,  V.  C. 
allowed  as  evidence  in  support  of  an  ex- 
emption from  tithes,  claimed  for  a  par- 
ticular estate,  a  catalogue,  and  particu- 
lars of  sale,  and  also  a  map.  The  Vice 
Chancellor  said,  that  every  fact  which 
is  to  be  carried  beyond  lime  of  memory 
may  be  proved  as  matter  of  reputation, 
on  account  of  the  principle,  that  it  is  im- 
possible to  bring  direct  evidence  as  to 
each  a  fact.     In  Anscombe  v.    Shore,  1 


Taunt.  262,  the  right  was  prescriptive, 
but  it  would  seem  that  it  affected  a  mat- 
ter of  general  interest  to  commoners.  In 
2  Roll.  Ah.  186,  pi.  5,  tit.  Prerogative, 
it  is  said  to  have  been  held  that  declara- 
tions as  to  whether  certain  land  was 
parcel  of  a  manor  or  of  an  estate  were 
admissible  as  between  subjects,  but  not 
as  against  the  crown. 

(2)  Lord  Kenyon  and    Ashurst,  J.,  in 
Morewood  c.    Wood,  14    East,  329,  n. 
Lord  Kenyon,  C.  J.,  in    Reed  v.   Jack- 
son, 1  East,  357.  In  Blackett  v.  Lowes, 
2  Maule  &  Sel.  500,  where  evidence  of 
reputation  was  tendered   as   to  the  right 
of  the  tenants  of  a  particular  copyhold 
estate  to  cut  and  sell  wood.  Lord  Ellen- 
borough  said,  that  reputation  was  out  of 
the  question,     because   the     tenants^ 
right  could  only  arise  by  some  grant 
or   deed;    yet,  it   has    been    seen    that 
reputation  is  evidence  of  tolls  ;  Brett  «. 
Beales,  1  Mn.  &  M.  416.     In  Richards 
V.  Bassett,  10  Barn.  &  Cress.    663,  Lit- 
tledale,  J.,  said,  that  it  was  by  no  means 
clear  that  evidence  of  reputation  was  ad- 
missible in  matters  of  prescriptive  right. 
And  he  thought  that  it  was  not  admissible 
to  determine  whether  an    individual  had 
a  right  to  the  soil  itself,  or    only    a   right 
of  common  over  it.  In  Weeks  v.  Sparke 
1  Maule  and  .Selw.  691,   Dampier,    J., 
intimates,  that   reputation  would  not  be 
evidence  of  a  private    right  of  way  over 
a  particular  field.     In  Reed  v.  Jackson, 
1  East   356,  Lora   Kenyon    appears   to 
confine  the   admissibility  of  evidence  of 
reputation  to  cases  of  public  prescription. 
In   White  w.   Lisle,  4    Madd.  214,    the 
Vice  Chancellor  said,  that  in    late  times 
evidence   of    reputation    had   not    been 
tendered  in   cases  of  prescription  as    to 
individual  rights,  except  as  to    rights  of 
way. 


title. 


Sect.  2.]  Matters  of  General  Interest.  231 

not  the  interest  of  any  individual  in  particular  to  guard  from 
encroachment.  (1) 

Where  the  title   to  a  private  ri^ht  is  not    prescriptive,  the  J''"''''''!'' 

.    ,  ,   .    ,   -^       .  ,  ^       -  f  .     1  .'        ,     boundary. 

prmciples,  upon  which  evidence  oi  reputation  is  admitted, 
seem  more  completely  to  fail ;  it  cannot  be  said,  in  the  gener- 
ality of  such  cases,  there  is  a  necessity  for  resorting  to  hear- 
say testimony.  The  authorities  confirm  this  opinion.  Al- 
though evidence  of  reputation  is  received  of  the  boundaries 
of  parishes  or  manors,  which  are  generally  of  remote  antiqui- 
ty, such  evidence  has  been  held  to  be  inadmissible  for  the  pur- 
pose *of  proving  the  boundary  of  a  private  estate.  (1)  The  [  *256  1 
boundaries  of  private  estates  are  as  likely  to  have  been  of  re- 
cent as  of  ancient  date,  {a) 

The  objection  to  receiving  hearsay  testimony  upon  matters  Private 
of  private  right,  applies  with  still  greater  force  to  those  cases 
which  are  unsupported  by  any  analogy  to  matters  of  public 
or  general  interest ;  as,  where  the  fact  sought  to  be  proved  is 
not  matter  of  prescription  or  of  boundary.  Thus,  in  an  eject- 
ment, where  the  lessor  of  the  plaintiff  claimed  the  land  as 
tenant  in  tail  under  a  will,  by  which  the  testator  gave  his  son 
an  estate  for  life,  and  the  defendant  claimed  as  devisee  of  the 
son,  the  question  was,  whether  the  land   in  dispute  was  part 

(1)  Another,  and  perhaps  the  princi-  p.  254,   n.,    such  evidence  was  thought 

pal  objection  to  the  evidence  of  reputa-  admissible    upon    a  question  of    private 

tion    in  matters  of  private    right,    arises  boundary,      in    Doninson    r.  Elsley,     3 

from  want  of  knowledge  in  the   declar-  Eag.  &  Y.  tithe    cases,   1396,  the   evi- 

ants.    This  objection  will  be  considered,  dence   of  a   witness    as    to    the    extent, 

in    treating    of  the    qualifications  under  boundaries,    and   parcels  of    an   estate, 

which  hearsay  evidence  is  receivable.  whose    information    was    derived    from 

(1)   Clothier  v.  Chapman,    14    East,  hearsay  and  from  a  map  and  plan,  was 

331,  n.     But  in  Daviesu.  Lewis,  supra,  rejected. 

(a)  Boundaries  of  private  estates.  That  boundaries  may  be  proved  by  hear- 
say evidence  is  a  rule  well  settled.  Some  diflerence  of  opinion  may  exist  as  to  the 
application  of  this  rule,  but  there  can  be  none  as  to  its  legal  force.  Per  M'Lean, 
J.,  6  Pet.  R.  341.  Hearsay  and  reputation  should  be  received  to  establish  ancient 
boundaries  ;  but  such  evidence  must  be  pertinent  and  material  lo  the  is<ue;  id. 
However,  in  Ellicott  v.  Pearl,  10  id.  412,  Story,  J.,  in  delivering  the  judgment  of 
the  court,  observes,  that  hearsay,  or  reputation,  or  tradition  is  not  admissible  in  ca- 
ses of  mere  private  rights;  but  only  in  cases  of  public  rights,  involving  similar  inter- 
ests by  a  number  of  persons.  After  citing  Clothier  v.  Chapman,  he  added  : — 
"  The  doctrine  in  America,  in  respect  lo  boundaries,  has  gone  further,  and  admit- 
ted evidence  of  general  reputation  as  to  boundaries  between  contiguous  private  es- 
tates."    id.  p.  436— ci^i/i^  6  IJinn.  59;   1  Pet.  C.  R.  496,  511,  512. 

'J"he  declarations  of  old  people  respecting  the  ancient  bounds  or  monuments  be- 
tween the  lands  of  individual  proprietors,  who  were  acquainted  with  them,  have 
been  admitted.     Higley  v.  Bidwell,  9  Conn.  R.  451. 

Where  one  was  in  possession  of  a  lot  18  years  before  the  trial,  occupying  and 
claiming  the  lot  as  his  owri,  his  declarations  were  held  to  be  admissible  as  to  the 
original  line.  He  said  he  was  present  when  the  line  was  run,  and  the  line  set  up 
by  the  defendant  was  the  line  the  surveyor  referred  to.  1 0  .T.  R.  377.  They  wore 
the  declarations  of  the  father  of  one  of  the  parties  who  had  died  in  possession. 

Reputation  and  report  in  the  vicinity  of  the  land  have  been  admitted  lo  establish 
the  boundary  at  the  corners,  wlierc  it  did  not  contradict  record  evidence.  3  Ohio, 
282.     Sec  4  Day's  R.  265. 


Prosciiln- 
tioii. 


232  Hearsay  Evidence.  [Chap.   13. 

of  the  ciilail(;d  estate,  or  liad  been  purchased  by  the  son  ;  evi- 
dence of  reputation,  that  the  land  had  belonged  to  Sir  J.  S. 
and  had  been  purcliascd  of  him  by  the  father,  the  first  testator, 
was  held  to  be  clearly  inadmissible.  (2) 

In  Rex  V.  Antrobus,  {Z)  on  the  trial  of  an  information 
against  a  sheriir  of  a  county,  for  not  executing  a  convict  sen- 
tenced to  death,  it  has  been  held,  that  a  witness  could  not  be 
asked,  whether  he  had  heard  that  it  was  the  custom  for  the 
sheriti'  to  be  exempt  from  performing,  or  for  another  person  to 
perform,  the  duty  in  that  particular  county,  although  it  had 
been  proved  that  such  other  oflicer  had  in  fact  always  per- 
formed it  within  living  memory.       It  was  said,  that  this  was 

[  *257  ]  *not  a  matter  of  public  interest,  the  public  not  being  interest- 
ed in  the  (|uestion  which  officer  was  to  perform  the  duty. 

It  has  been  said,  that  in  the  case  of  the  Bishop  of  Meath 
V.  Lord  JJc/Jield,  (1)  ni  aqiiareimpedit,  after  the  plaintiff  had 
given  in  evidence  an  entry  in  the  register  of  the  diocese,  of 
the  institution  of  one  K.  (in  which  entry  there  was  a  blank, 
where  the  patron's  name  was  usually  inserted),  parol  evidence 
of  the  general  reputation  of  the  country  was  offered,  that  K. 
was  in  by  the  presentation  of  one,  under  whom  liOrd  Belfield 
claimed  ;  and,  that,  on  a  bill  of  exceptions  the  evidence  was 
adjudged  to  be  admissible,  on  the  ground  that  a  presentation 
may  be  by  parol,  and  that  what  commences  by  parol  may  be 
transmitted  to  posterity  by  parol ;  and  that  this  creates  a  gen- 
eral reputation.  But  Lord  Kenyon,  adverting  to  this  case,  in 
the  case  of  King  v.  JEriswell,  (2)  said,  he  admitted  that  a 
presentation  might  be  by  parol,  and  might  be  proved  by  parol, 
that  is,  by  a  witness  who  was  present  and  heard  it  ;  but  he 
denied,  that  in  such  a  case,  common  reputation  could  be  given 
in  evidence.  If  it  can,  he  added,  why  might  not  such  evi- 
dence decide  titles  to  estates,  at  least  before  the  statute  of 
frauds,  when  no  written  instrument  was  required  to  make  a 
good  feoffment  of  the  greatest  landed  property  in  the  king- 
dom. 

Orders.  In  ejectioue  firnim  for  a  rectory,  after  the  plaintiff  had  prov- 

ed presentation,  admission,  institution,  induction,  and  the  read- 
ing of  the  articles,  the  defendant's  counsel  insisting  that  he 
should  prove  that  he  was  in  orders.  Lord  Holt  admitted  evi- 

(2)   Doe  d.  Dodsbury  v.  Thonms,  14  Blackelt  v.  Lewes,   1  !\1.  &  S.  500,  re- 
East,    323.       In  this  case  the  evidence  putation  of    what    must  have  arisen    by 
may,  perhaps,  be   thought  objectionable  private    grant  from  a  Lord  to  his    copy- 
also  as  relating  merely  to  a  particular  fact,  holders  was  rejecled. 
The  same  may  be  observed   in  the   case  (3)   2  Ad.  ic  Ellis,  794. 
ofOutram  v.  Morewood,  5  T.    R.  123.          (1)    Bull.  N.  I'.  295,  cited  by  Duller, 
111    VVithnell  y.  (jiartham,    1    Esp.    322.  J.,  in  Rex  v.  Erisvvell.  3  T.  R.  719.    S. 
Lord    Kenyon   rejected  traditionary  evi-  C  reported  1  Wils.  215. 
dence  of  usage  in  electing  a  schoolmas-         (2)  3  T.  R.  723.      Tellard    v.  Sheb- 
ter,  as  it  related  to  private   right.      In  beare,  2  Wils.  36(i. 


Sect.  2. J  Matters  of  General  Interest.  233 

dence  of  reputation  as   to  the    fact,   saying,   the   same   proof 
would  be  allowed  to  prove  orders  as  to  prove  marriage.  (3) 

*It  is  laid  down  by  many  authorities,  that  hearsay  evidence  Particular 
oi  particular  facts  is  not  admissible.  (1)  There  seems  to  be  r'*258  1 
no  adequate  necessity  for  admitting  hearsay  evidence  to  es-  *" 
tablish  facts,  which  are  not  likely  from  their  nature  to  be 
the  subject  of  general  remark,  merely  because  they  may  con- 
duce to  the  proof  of  matters  upon  which  evidence  of  reputa- 
tion is  admissible,  or  merely  because,  in  the  particular  instance, 
they  are  of  considerable  antiquity.  However,  it  would  seem 
that  some  particular  facts,  at  least  might  not  improperly  be  the 
subject  of  traditional  evidence.  In  matters  of  pedigree,  the 
hearsay  evidence  relates  almost  entirely  to  particular  facts;  (2) 
but  the  facts  are  of  that  nature  which  make  a  strong  impres- 
sion, and  whic?i  in  a  number  of  instances  sufficient  to  warrant 
a  general  rule,  are  incapable  of  proof  by  living  testimony.  It 
has  been  observed,  that  particular  facts,  in  general,  are  not 
matters  of  notoriety,  that  they  are  easily  misunderstood  or 
misrepresented,  and  that  they  ai'e  commonly  connected  with 
other  facts  by  which  their  eliect  ought  to  be  explained  and 
limited. 

On  a  question  of  parochial  modus,  hearsay  evidence  that  a 
particular  person,  since  deceased,  })aid  a  certain  simi  in  lieu  of 
tithes,  would  not  be  admissible  :  but  if  the  witness  says,  he 
has  heard  from  old  inhabitants,  that  so  much  per  acre  was  al- 
ways paid  in  lieu  of  tithes,  or  that  it  had  always  been  the  cus- 
tom to  make  such  payments,  that  will  be  good  evidence,  for 
it  does  not  consist  of  hearsay  of  a  particular  fact,  but  comes 
within  the  general  rule   of  evidence    of  reputation.  (3)     But 

(3)  Ilarscot'scase,  Comb.  902.    Per-  Pr.    162.       Cliatfield  v.  Fiver,  1  Price, 

liaps,    however,    this    di'oision    may    he  253.      Garnoiis  r.  Bernard,  1  Ans!r.  29S. 

supported  with  greater  piopriety  on    the  Py     Chief     .lui-tice    Mansfield,     in    the 

principle    of  presumptions,    vide  infra.  Berkeley  case,  4  Catnph.  415.     Outrani 

The  case  seems  to  fall  within   a    general  r.    l^kirewood,    per    Lord    Ivenyon,    14 

rule  of  the  civil  law,  that  fame  .should  he  East,  330,  n.       iSichols    j>.    J'arker,     14 

iidiiiiitcd  to    prove   whatever   concerned  East,  331,  n.     Cooke  i'.  Banks,  2  C.  & 

the  s<a^«s  of  man.      Before  the  distinc-  P.  4S1.       In  several  of  the  cases,  where 

lion  of  lay  and  clerical  arose,  there  were  this  general  rule  has  been  laid  down,  the 

but  three  questions  concerning   the  sta-  particular  fact  in  question    had    no  con- 

tus  of  men  :    first,  de  statu  Hbertatis;  nection  with  the  e.xercise  of  any  public 

secondly,   de  statu  civitulis  ;     thirdly,  right,  or  the  perforM;ance  of  any   pul)lic 

de  .statu  fumilm  ;     and  by  the  old  Ko-  duty,    and  was   not  in  itself  an  object  of 

inan  law,  the  same  process  was  upplica-  notoriety. 

l)le  to  each.  Heinecc.  Antiq.  Horn,  riynt.  (2)     I'er    Mansfield,     il.    J.,   in   the 

lil>.  iv.  tit.  fi,  a.  30.     The  three  questions  Berkeley  case,  4  Camp.  416. 
are  m;atly  brought  together  by  Terence.  (3)  llarwood  r  Sims,  I  Wightw.  112. 

Cn.  "Principio  earn  dicoesse  /iberain.'^  Per  Macdonald,  C.   B.,  "  the  essence  of 

Tint.    "  IJem  .*"     Ch.     "  Civem  atti-  reputntion  i^,  that  if  you  prove  a  fact,  an 

cam."     Thk      "  Ilui  .'"     Ch.     "  !\ic-  for  instance,  payment  of  a  sum   of  mon- 

am    sororern."     'J"hr.    "  Os  durum  I"  ey,    it  must    be  accom|):inic(l    with    this, 

Eunuch.   IV.  7,  v.  35.  th;it  it  was  sn  paid  in  consequence  of  a 

(1;   Per  Gro.se,  J  ,  3  T.  R.  709.     Per  reputation,      ff  evidence    is   confined  to 

Lord  Kenyon,  C.  J.,  5  T.  R.  123.     Per  the  fact  of  payment,  it  is   inadmissible. 

Wood,    Baron,   Moseley  i'.  Davies,    11  unless    the    tradition    thai   came  with  i, 

30 


234  Hearsay  Evidence.  [Ch.  13. 

[  *259  ]  *thougli  hearsay  of  a  custom  to  make  particular  payments  is 
evidence,  hearsay  that  certain  lands  were  formerly  given  to 
the  vicar  in  lieu  of  tithes  is  not  admissible  ;  (1)  this  being  ev- 
idence of  a  particular  fact,  and  being  confined  to  a  particular 
occasion.  Again,  though  reputation  is  good  evidence  of  the  " 
boundaries  of  a  town,  it  is  not  admissible  to  prove  that  hous- 
es once  stood  where  now  there  are  none.  (2) 

Upon  a  question  whether  a  part  of  Lincoln's  Inn  was  part 
of  the  parish  of  St.  Andrew  Holborn,  an  ancient  book  of  an- 
tiquities, relative  to  the  parish  and  collected  by  a  churchwar- 
den, was  produced,  and  several  entries  were  tendered  in  evi- 
dence concerning  the  repairs  of  pews,  and  the  glazing  of  win- 
dows. But  Lord  Tenterden  refused  to  receive  this  evidence, 
as  it  related  only  to  particular  facts.  (3) 

Perambulations,  although  they  consist  of  particular  acts 
done,  as  the  making  of  an  ambit,  digging  turves,  and  putting 
down  posts  at  particular  places,  and  although  they  give  rise  to 
much  hearsay  evidence,  are,  properly  speaking,  only  the  ex- 
ercise of  a  right.  It  is,  however,  usual  and  perfectly  consis- 
tent with  principle,  to  admit  what  old  persons,  deceased,  who 
accompanied  the  perambulations,  were  heard  to  say  on  such 
[  *260  ]  occasions  ;  ^though  there  does  not  appear  to  be  any  authority  for 
admitting  hearsay  as  to  particular  facts  conducive  to  the  proof 
of  the  boundary,  even  though  it  be  delivered  on  the  occasion 
of  a  perambulation.  Lord  Ellenborough  observes  upon  the 
subject  of  perambulations,  that  they  are  in  the  nature  of  hear- 
say evidence  not  of  particular  acts  done,  as  that  such  a  turf 
was  dug,  or  such  a  post  put  down  in  a  particular  spot ;  for  that 
would  amount  to  evidence  of  ownership ;  but  they  are  evi- 
dence of  the  ambit  of  any  particular  plan  or  parish,  and  of 
what  the  persons  accompanying  the  survey  have  been  heard 
to  say  and  seen  to  do  on  such  occasions.  (1)     And  Le  Blanc, 

was  a  reputation   that  that  had  always  matter  was  not  of  public   interest.      As 

been  the  case."     And    see    Wood,   B.,  in  Doe  «.  Thomas,  14  East,  323,  where 

in  Mosely  v.  Davies,  11  Pr.  162,  that  the  the  reputation  was,  that  the  land  had  be- 

evidence    should    always    be     general,  longed  to  I.  S.  and  was  oF  A.  B. 
And  see  Wells  v.  Jesus  College,  Oxford         (3)   Cooke  v.  Banks,    2    Carr.    &   P. 

7  C.  &  P.  284,  statement  of  an    occu-  481.     Lord  Tenterden  stated    that   evi- 

pier  as  to  the  fact  of  payment  of  a  ino-  dence  of  particular  facts  was  not  recciv- 

dus.  able,    unless  the  party  charged  himself; 

(1)  Chatfield  v.  Fryer,  1  Pr.  253.  the  question  of  the  book  being  a  public 
And  see  Leathes  v.  Newel,  4  Pr.  355,  8  book  or  not  does  not  appear  to  liave 
Pr.  562;  evidence  of  reputation  of  cer-  been  much  considered.  In  Price  v.  Lit- 
tain  lands  having  been  inclosed,  in  pur-  tiewood,  3  Camp.  289,  similar  entries 
suance  of  an  agreement,  rejected.  In  appear  to  have  been  admitted  ;  but,  the 
Crease  v.  Barrett,  1  Cr.  M.  &  R.  919,  is  question  related  to  a  right  of  pew  ;  and 
another  example  of  hearsay  evidence  of  the  nature  of  the  book  was  assigned  as 
a  particular  fact  being  rejected.  one  of  the  grounds  of  it's  admission. 

(2)  Ireland  r.  Powell,  Peake's  Ev.  (1)  In  Weeks  v.  Sparke,  1  Maule  & 
14,  cited  1  Pr.  256.  The  circumstance  Selw.  687,  689.  It  is  to  be  observed, 
that  the  reputation  related,  to  particular  that  perambulations  are  actually  atlend- 
facts  was  an  objection  to  it's  admissibili-  ed  by  a  great  number  of  strangers,  as 
tj',  in  addition  to  the  olijection  that  the  well   as  by  official   persons,   commonly 


Sect.  2.]  Matters  of  General  Interest.  235 

J.,  observes,  in  the  same  case,  that  the  evidence  of  perambu- 
lations might  be  considered,  in  a  certain  degree,  as  evidence 
of  the  exercise  of  a  right,  yet  that  it  had  been  usual  to  go 
further,  and  admit  the  evidence  of  what  old  persons,  who  are 
deceased,  have  been  heard  to  say  on  those  occasions.  In  a 
late  case,  perambulations  by  a  lord,  of  what  he  considered  to 
be  his  manor,  made  in  the  absence  of  the  party  affected  by 
them,  were  received,  as  shewing  a  claim  of  right  and  act  of 
ownership,  though  slight  in  its  efiect ;  (2)  a  principle  obvi- 
ously distinct  from  that  at  present  under  consideration. 

In  the  next  place,  according  to  the  course  adopted  in  treat-  fy^ck^^j 
ing  of  pedigree,  it  is  proposed  to  consider  the  different  forms 
in  which  evidence  of  reputation,    upon   matters  of   public  or 
general  interest,  is  usually  presented  to  the  Courts. 

Reputation  respecting  public  rights  may  be  shewn  by  old  Documents, 
deeds  or  other  documents,  as  well  as  by  the  oral  declarations 
of  deceased  individuals.  (3)     Thus,  where  the  question  was, 
whether  certain  land  was  in  the  parish  of  A.,  or   in  that   of 
*B.,  the  land  in  the  latter  being  tithe-free,  ancient  leases  grant-  r  ^oc  i  i 
ed  by  the  ancestors  of   the  plaintiff's  landlord,   in  which    the  ^    ~      -• 
land  was  described  as  being  in  parish  B.,  were  held  admissi- 
ble as  evidence  of  reputation,  notwithstanding  that  such    an- 
cestor had  a  direct  interest  in  describing  the  land  to  be  situate 
in  that  parish.  (1) 

In  the  case  of  the  Cambridge  Tolls,  a  composition  deed  be-  J^°"^°^' 
tween  the  Corporation  of  Cambridge  and  the  University,  reg- 
ulating the  amount  of  payment  of  tolls,  was  received  as  evi- 
dence of  reputation  of  the  existence  of  the  tolls.  (2)  So  de- 
positions in  ancient  suits  have  frequently  been  produced  to 
prove  reputation.  (3) 

A  customary  of  a  manor  delivered  down  with  the  Court  Manorial 
Rolls,  from  steward  to  steward,  and  purporting  to  be  ex  as- 
sensu  omnium  tenentium,  although  not  signed  by  any  person, 
has  beeri  held  to  be  good  evidence  to  prove  the  course  of  de- 
called  the  spadesmen.  Perhaps  in  giv-  486.  Coombs  v.  Coethier,  1  Moo.  & 
ing  evidence  of  the   declaration  of  per-     Mai.  398." 

ambulators,  it  would  be  presumed  that  (2)  Brett  v.  Beales,  1  Mo.  &  Mai. 
they  were  made  by  persons  conversant  416.  It  appeared  that  the  deed  had  not 
with  the  boundary  in  queslion.  And  been  exactly  followed  in  practice;  but  it 
the  occasion  of  the  declaration  might  be  was  held  that  this  objection  did  not  ap- 
considered  as  giving  them  weight.  ply  to  it's  admissibility. 

(2;  Wooiway  v.   Rowe,    1  A..  &  E.  (S)  Freeman  v.  Phillipps,  4  Maule  & 

lis.  Selw.  493,    and  the  cases  of  the  Settle 

(3)  This  subject  will  receive  further  and  Leeds  Mills  cited  by  Lord  Ellenbo- 
illustration  in  the  part  of  the  work  which  rough,  ib.  In  Pollard  v.  Scott,  Peake, 
treats  of  public  documents.  18,    upon  a  question  of  highway,  Lord 

(1)  Pliixton  V.  Dare,  10  Barn.  &  Kenyon  rejected  the  evidence  of  a  cop- 
CresB.  17.  For  other  instances  of  simi-  perplate  map,  purporting  to  have  been 
lar  evidence  being  received,  Arundell  v.  taken  by  the  churchwardens  at  the  time. 
Lord  Falmouth,  2  .Maule  .Si.  Selw.  443.  But  there  does  not  appear  to  be  any  val- 
Freeman  v.  Phillips,  4   .Maule  &  Selw.     id  objection  to  such  evidence. 


23G  Hearsay  Evidence.  [Ch.   13. 

sceat  within  a  manor.  (4)  So  the  presentment  of  a  cus- 
tom of  a  manor  by  the  homage,  entered  on  the  rolls  of 
the  manor,  is  receivable.  (5)      In  Crease  v.  Barrett,  ancient 

[  *262  ]  answers  of  *conventionary  tenants  of  a  manor,  stating  the 
rights  of  the  lord  of  the  manor,  and  made  to  interrogatories 
put  to  them  by  commissioners,  but  to  which  interrogatories 
were  lost,  were  received  in  evidence.  (1) 

So  in  an  action  by  a  copyholder  against  a  freeholder  of  the 
manor  for  the  disturbance  of  the  plaintiff's  right  of  common,  by 
reason  of  the  defendant  purchasing  the  common,  (the  plaintilf 
setting  up  a  restricted  right),  parchment  writings  produced  on 
the  part  of  the  defendant  from  amongst  the  muniments  of 
the  manor,  purporting  to  be  signed  by  many  persons  copyhold- 
ers, and  stating  an  unlimited  right  of  common  in  the  common- 
ers, which  having  been  found  inconvenient,  they  had  agreed 
to  stock  it  in  a  restricted  manner,  were  held  admissible  as 
evidence  of  reputation  as  to  the  general  right  at  that  period, 
and  in  disproof  that  the  restricted  right  originated  in  prescrip- 
tion ;  there  being  no  evidence  that  the  plaintitf's  tenement 
belonged  to  any  of  those  who  had  signed  the  writings,  so  as  to 
render  them  admissible  against  him  on  that  ground.  (2) 

It  would  seem  that  maps,  stating  the  boundaries,  of  manors 

Maps.  or  parishes,  would  be  receivable  in  evidence  to  prove  such 
boundaries,  provided  it  appeared  that  they  had  been  made  by 
persons  having  adequate  knowledge.  In  the  cases,  however, 
where  maps  have  been  admitted  in  evidence,  their  admissibil- 
ity has  depended  on  the  ground  of  their  being  public  docu- 
ments, or  of  their  being  in  the  nature  of  admissions.  Where 
they  relate  merely  to  the  boundaries  of  private  property,  there 
is  no   ground  for  receiving  them,  however  ancient.  (3)  (a) 

(4)  Denn  v.  Spray,  1  T.  R.  466.  ing  a  place  as  a  manor  was  given  in  evi- 
When  the  instrument  containing  evi-  dance.  In  Barnes  v.  Mawson,  1  IVIaule 
ilence  of  reputation  is  found  among  tlie  &  Selw.  "79,  leases  of  the  lord  of  a  ma- 
inuniments  of  a  manor,  the  reputation  nor,  and  entries  of  payments  and  con- 
may  perhaps  be  considered  as  deriving  veyances  in  the  Court  Rolls,  were  re- 
some  additional  force  in  the  nature  of  ceived  As  to  leases,  vide  Clarkson  «. 
an  admission,  in  consequence  of  the  privi-  Woodliouse,  5  T.  R.  412,  n.  .3  Doug, 
ty  of  copyholders,  and  their  access  to  189.  In  Bullen  v.  Rlichel,  4  Dow.  1'. 
the  instrument  in  question.  C.  297,  leases  are  spoken  of  as  evidence 

(5)  In  Roe  v.  Parker,  5  T.  R.  26;  and  of  reputation, 

see  ib.     Lord  Kenyon's  remarks   as   to  (I)   ^  Cr.  M.  &  R.  92.3. 

the  credit  due  to  such  presentments.    In  (2)   Chapman  v.  Cowlan,  13  East,  8. 

Arundell  v.  Lord  Falmouth,  2  Maule    &  (3)  Pollard  v.  Smith,  Peake,  18,  such 

Selw.  441,  presentments  by  the  homage  evidence  appears  to    have    been  rejected 

were  given  in  evidence.     In    Curzon    v.  upon  a  question  of  highway.     With  re- 

Lomax,  5  Esp.  60,  an  old  deed  describ-  spect  to  private  maps,  see  Doe  v.  Laken 

(a)  Ancient  reputation  and  possession  as  to  the  boundaries  of  streets,  are  entitled 
to  more  respect  in  deciding  upon  the  boundaries  of  lots,  than  any  experimental  sur- 
vey that  may  be  afterwards  made.     3  Rand.  284. 

Where  an  ancient  corporation  of  proprietors  was  extinct  and  iheir  records  lost, 
the  Court  admitted  a  plan,  taken  by  order  of  the  proprietors,  in  which  the  premises 
were  described  as  a  town  landing.  This  evidence,  together  with  the  fact  that  it 
was  before  and  since  known  and  used  as  such,  brings  it  within  the  protection  of  die 
Jaw.     Sevey's  case,  6  Greenl.  R.  118. 


Sect.  2.] 


Matters  of  General  Interest. 


237 


*It  has  been  held,  upon,  a  question  of  public  or  general  in- 
terest, that  a  verdict  is  receivable  evidence  of  reputation.  As 
in  the  case  of  Reed  v.  Jackson,  (1)  where  in  an  action  of  tres- 
pass, issue  was  joined  on  a  plea  of  public  right  of  way,  the 
plaintiff  was  allowed  to  give  in  evidence  a  verdict  found  in 
his  favour  against  a  different  defendant,  upon  an  issue  joined 
as  to  the  existence  of  the  same  right  of  way.  And  in  an  ear- 
lier case,  where  the  question  discussed  was  concerning  the 
right  of  the  City  of  London  to  take  certain  tolls  npon  malt 
brought  to  London  by  west  country  barges,  it  was  held,  that 
verdicts  against  certain  owners  of  barges,  were  admissible  in 
evidence  against  other  owners  who  were  neither  parties  nor 
privies  to  the  former  records.  (2)  The  like  evidence  has  been 
received  upon  a  question  respecting  the  right  of  electing 
churchwardens.  (3)  And  the  admissibility  of  verdicts,  in  ca- 
ses where  evidence  of  reputation  is  receivable,  seems  to  be  fully 
established  by  the  authorities  relating  to  the  competency  of 
witnesses  to  give  evidence  in  proof  of  customs,  from  the  estab- 
lishment of  which  they  might  themselves  derive  a  benefit.  (4) 

*In  the  case  oi  Reed  v.  Jackson  before  cited,  (1)  Lawrence 
J.,  says,  "  reputation  would  have  been  evidence  of   the   right 


Verdicts. 

[*263 


Principle 
on  which 
verdicts 
admitted. 


7  C.  &  P.  481,  Sir  J.Bridgemanu.  Jen- 
nings, 1  Lord  Raym.  734.  Donaldson 
V.  Elslev,  2  Eagle  &  Y.  1.39G,  n.  infra 
<;h.  on  Admissions.  In  Alcock  v.  Cook, 
before  Tindal,  C.  J.,  at  Guildliall,  maps 
of  the  duchy  of  Lancaster  were  reueiv- 
-ed  as  public  documents. 

(1)  1  East,  356. 

(2)  City  of  London  v.  Clerke,  Carth. 
181.     B.  N.  P.   233,  where  it  is  said, 

that  custom  or  toll  is  lex  loci,  and  in 
such  cases  it  is  not  material  whether  tl.e 
verdicts  be  recent  or  ancient.  For  oth- 
er cases  see  Cost  c.  Birkbeck,  1  Doug. 
218,  case  of  Settle  Mills,  where  a  ver- 
dict and  a  decree  were  given  in  evi- 
■dence.  And  the  case  of  the  Manchester 
Mills,  1  Doug.  221,  n.,  where  a  decree 
was  given  in  evidence.  Duke  ef  Som- 
erset V.  France,  1  Str.  659.  In  Clark- 
son  V.  Woodhouse,  5  T.  R.  412,  a  de- 
cree, it  would  seem,  was  left  to  the  jury 
upon  a  matter  of  reputation.  In  Travis 
V.  Chaloner,  2  Eag.  &  Y.  tithe  cases,  it 
was  held,  that  upon  a  question  of  modus, 
a  verdict  between  the  parson  and  anoth- 
er occupier  was  admissible  evidence. 
In  Biddulph  v.  Ather,  2  Wils.  23,  on  a 
(juestion  of  prescriptive  right  of  wreck,  a 
judgment  and  allowances  in  Eyre  were 
proved. 


(n)  Beny  r.  Banner,   Peake,  157,  [  *2G4  ] 

(4)  B.  N.  P.  283,  and  see  ib.,  a  dis- 
tinction in  this  respect  between  customs 
and  prescriptions.  Per  Lord  Kenyon,  C. 
.T.,  in  Bent  v.  Baker,  3  T.  R.  33,  where 
the  like  distinction  is  noticed.  Per  As- 
hurst,  J.,  in  Walton  r.  Shelley,  1  T.  R. 
302.  Company  of  Carpenters  v.  Hay- 
ward,  1  Doug.  374.  Hockley  v.  Lamb, 
1  Lord  Raym.  731.  Lord  Falmouth  v. 
George,  5  Bing.  291.  Rhodes  v.  Ains- 
vvorth,  1  B.  &,  Aid.  87.  In  Lancam  v. 
Lovell  9  Bing  467,  the  same  principle 
was  recognised,  only  the  witness  was  ad- 
mitted ex  necessitate,  as  the  right  af- 
fected the  whole  public.  And  see  the 
cases  cited,  ib.  Upon  questions  of  mo- 
duses,  the  occupiers  of  lands  within  the 
parish  or  district,  for  which  the  modus  is 
claimed  have  been  considered  before  the 
statute,  as  incompetent  witnesses.  Lord 
Clanrickard  v.  Denton,  1  Eag.  &  Y. 
306.  Cart  v.  Hodgkin,  2  Swanst.  160, 
n.  Taylor  r.  Cook,  8  Pr  650.  Jones 
V.  Carringlon,  3  Eag.  &  Y.  1131.  Ans- 
combe  v.  Shore,  1  Taunt.  261.  Flem- 
ing o.  Simpson,  2  !\1.  &  R.  169.  As  lo 
the  eliect  of  the  recent  statute  in  such  ca- 
ses, vide  supra  "  Interest  of  Witnes- 
ses." 

(1)   Supra,  p.  263. 


A  plan  taken  ex  parte  can  never  be  used  but  as  a  chalk,  unless  by  consent. 
Where  a  plan  is  taken  under  a  rule  of  the  Court,  or  agreed  upon  by  tiie  parties, 
the  surveyor  appointed  by  the  Court,  and  sworn  to  the  faithful  execution  of  his 
trust,  Bhould  give  notice  lo  the  parties,  and  also  mark  on  the  plan  any  monuments 
■or  lines,  which  either  of  the  parties  shall  request.     4  I\Iass.  40S. 


"238  Hearsay  Evidence.  [Cli.   13. 

of  way  in  question  ;  a  fo?i.iori,  therefore,  the  finding  of  twelve 
men  upon  their  oaths."  (2)  But  it  is  to  he  observed,  that  the 
statements,  upon  Avhich  tlie  opinion  of  the  former  jury  was 
founded,  were  all  made  post  litem  motam,  and  the  witnesses, 
who  might  be  still  living,  were  brought  forward  by  litigating 
parties,  and,  further,  tliat  their  cross-examination  by  stran- 
gers could  never  be  considered  as  entitling  their  evidence  to 
any  additional  weight.  In  Ncal  d.  Duke  of  Athol  v.  Wild- 
ing, (3)  the  majority  of  the  Judges  would  not  allow  a  special 
verdict  to  be  given  in  evidence  to  prove  a  pedigree,  on  the 
ground  that  it  was  res  ittter  alias  acta,  and  because  the  same 
evidence,  for  any  thing  they  knew  to  the  contrary,  might  be 
ready  to  be  laid  before  the  second  as  before  the  first  jury.  In 
a  recent  case,  upon  a  question  respecting  the  jurisdiction  of 
the  Court  of  Session  of  the  County  of  Chester,  an  order  and 
decree  upon  the  subject,  by  the  Lord  High  Treasurer  and 
certain  other  public  functionaries  of  the  kingdom  (not  forming 
any  Court  known  to  the  laws),  was  held  to  be  admissible  as  ev- 
idence of  reputation,  because  (as  was  said  by  Lord  Tenterden) 
declarations  are  only  evidence  of  reputation,  when  made  by 
those  who  have  a  personal  knowledge  of  the  fact ;  whereas 
in  the  case  in  question,  the  persons  acting  as  judges  had  no 
knowledge  of  the  fact,  except  what  was  derived  in  the  course 
of  the  proceeding.  (4)  Lord  Holt,  in  the  case  of  the  City  of 
London  v.  Gierke,  (5)  which  has  been  before  cited,  rested 
the  admissibility  of  the  verdicts,  which  were  received  in  evi- 
[  *265  ]  dence,  on  the  ground,  that  as  payment  of  *the  duties  by  stran- 
gers would  have  been  admissible  in  evidence,  so  a  recovery 
against  a  stranger  ought  to  be  received. 
Effect  of  With  respect  to  the  etfect  of  the    evidence   supplied  by  a 

ver  ict.  verdict.  Lord  Kenyon  observed,  in  Reed  v.  Jackson,  ( 1 )  that 
perhaps  it  was  not  entitled  to  much  weight,  and  certainly  was 
not  conclusive.  It  was  held,  in  the  same  case,  that  the  effect 
of  the  verdict,  whatever  it  might  be,  could  not  be  obviated  by 
any  evidence  adduced  to  shew,  that  the  finding  of  the  jury 
had  been  indorsed  by  mistake  on  the  postea,  and  that  in  fact 
no  evidence  had  been  offered,  at  the  former  trial,  under  the  is- 
sue, the  finding  as  to  which  was  relied  on.  -* 

(2)  Lord  Kenyon  argues  for  the  ad-  ler's  observations  on  the  case  of  Clargea 
missibility  of  the  verdict,  on  the  ground  v.  Sherwin,  relied  on  by  the  Court  in 
that    the    defendants    both  stood  in  the     the  Duke  of  Athol's  case. 

same  relative  situation,  and  compares  the  (4)  Rogers  v.  Wood,  2  Barn.  &  Adol. 

case  to  that  of  commoners.     This  notion  245. 

of  verdicts  being  evidence  for  or  against  (5)  Carth.  181.     Supra,  p.  263. 

copyholders    by    reason    of    privity,   is  (1)   1    East,    355.     Lord    Mansfield's 

adopted   by   the   Court    in   Freeman  v.  observation  in  the  case  of  the  Manches- 

Phillips,  4  Maule  &  Selw.  491.  ter  Mills,  1  Doug.  221,  n.  that  the  decree 

(3)  2  Str.  1 151,  Mr.  J.  Wright  con-  in  that  case  incontrovertibly  bound  all 
tra.  It  is  said  in  Bull.  N.  P.  233,  thai  persons  answering  the  description  of  in- 
Mr.  J.  Wright's  opinion  was  generally  habitants  of  Manchester,  seems  to  be  un- 
approved  of.    And  see  ib.  Mr.  J.  Bui-  tenable.     la  Berry  v.  Banner,   Pealie, 


Caution 
necessary. 


Sect,  2.J  Matters  of  General  Jnlcrest.  239 

It  has  been  held,  that  hearsay  evidence  negativnig  a  public  ^>gai'^'e- 
right  is  admissible  no  less  than  that  which  asserts  it.  Accord- 
ingly, upon  an  issue  whether  a  certain  place  situate  on  the 
bank  of  a  river  was  a  public  landing  place,  evidence  was  re- 
ceived of  reputation,  that  it  was  not  a  public  landing  place.  (2) 
Mr.  Justice  Coleridge  observed,  that  there  could  be  no  dis-  Reputation, 
tinction  between  the  evidence  of  reputation  to  establish  a  pub- 
lic right,  and  such  as  must  be  admitted  to  shew  that  the  pub- 
lic have  not  that  right.  A  rule  for  a  new  trial  in  this  case 
was  afterwards  discharged. 

According  to  the  same  course  which  was  followed  in  treat-  Qof'ifi"- 

O  tions  under 

mg  of  pedigree,  it  is,  in  the  next  place,  proposed  to  consider  which  hear- 
the  qualifications,  under  which  evidence  of  reputation  is  re-  si[^[e7n  mat- 
ceivable  upon  matters  of  public  and  general  interest.  lersof 

Upon  this  it  may  be  useful  to  observe,  that  judges  have  ^"neTarin- 
differed  in  opinion,  concerning  the  weight  to  be  given  to  ev-  ipfpst 
idence  *of  reputation.  There  are  several  judicial  remarks  of 
a  very  strong  nature  to  be  met  with,  which  shew,  at  least,  [  *266  ] 
that  such  evidence  is  open  to  much  observation  calculated  to 
weaken  its  effect.  Lord  EUenborough,  in  Weeks  v.  Sparke{\) 
observes  '*  Reputation  is,  in  general,  weak  evidence ;  and 
when  it  is  admitted,  it  is  the  duty  of  the  Judge  to  impress  on 
the  minds  of  the  jury  how  little  conclusive  it  ought  to  be, 
lest  it  should  have  more  weight  with  them  than  it  ought  to 
have."  And  Mr.  J.  Grose  observes,  that  this  kind  of  evi- 
dence ought  to  be  very  cautiously  admitted.  (2)  (a) 

1 57,  Lord  Kenyon  said,  that  the  verdict  Pr.  136,  expressly  dissents  from  Lord  EI- 

was  very   nearly  conclusive,  if  not  quite  lenboroiigh's  opinion;  and  says  that  up- 

so.     As  against  a  parish,    indeed,  a  re-  on  questions  of  moduses  reputation  wag 

cord  of  conviction    for    not    repairing    a  entitled  to  great  weight  ;    and  Richards, 

liighway  is,  it  seems,  conclusive.       Rex  C.  D.,  in  INloseley  v.  Davies,  11  Fr.  162, 

V.  St.  Pancras,  Peake,    220.     It  has  not  speaks    of  reputation    as    having    great 

Ijeen  considered  an  objection  to  verdicts  weight  and  etiect.  ♦ 

as  evidence  of  reputation  that  they  were         (2)  In  Morevvood   v.  Wood,  14  East, 

post  litem  tnotam.  330.     Lord  EUenborough,  in  Weeks  v. 

(2)   Drinkvvater  v.  Porter,    7  C.  &  P.  Sparke,  1  Maule  &  Selw.  680,  professes 

181.     And  see  Reed  r.  Jackson,  sMjiror,  himself  at    a    loss   to  understand,  why, 

p.  263.  even   in  matters  of   public  right,  reputa- 

(1)   1  Rlaule   &   Selw.    686.       Baron  tion  was    ever   deenied   admissible    evi- 

Wood,    in   Robinson  v.  Williamson,    9  dence. 

(a)  Hearsay  evidence  is  not  admissible  unless  the  party  shew  that  his  case  con- 
stitute an  exception  according  to  an  acknowledged  rule  of  law.  or  some  judicial  de- 
cision, or  at  least  that  it  is  entirely  within  the  reason  and  spirit  of  an  acknowledged 
exception.     Medley  v.  Williams,  7  G.  &  J.  61. 

The  danger  of  admitting  hearsay  evidence,  is  suilicient  to  admonish  courts  of  jus- 
tice against  yielding  to  the  introduction  of  fresh  exceptions  to  an  old  and  well  es- 
tablished rule.      I'er  Marshall,  Ch.  .1.  7  Cranch.  290. 

To  authorize  the  admission  of  hearsay  evidence,  (except  in  cases  of  pedigree) 
three  things  must  concur  :  first,  that  the  fact  to  which  the  reputation  or  tradition 
applies,  must  be  of  a  public  nature  :  secondly,  if  the  reputation  or  tradition  relato 
to  the  exercise  of  a  right  or  privilege,  it  must  be  supported  by  acts  of  enjoyment  or 
])rivilege  within  the  period  of  living  memory  :  thirdly,  that  it  tnust  not  be  reputa- 
tion or  traditionary  declarations  to  a  particular  fact.  Per  Story,  J.,  in  Ellicolt  r.. 
Pearl,  10  Pet.  R.  112,  137. 


240  Hcaisay  Evidence.  [Ch.   13. 

rompeteiit       ^Y\\e  fii'st  (lualificatioii  to  be  noticed,  with  respect  to  receiv- 

knowlediro     .  ■  ^  r  c  ^\•  i 

in  iiecia-"      Hig  cvidoucc  01  reputation  upon  matters  oi  public  and  geiicr- 
*■"'"•  al  interest,  is  the  same,  which,    as  before    shewn,    apphes    to 

the  admission  of  hearsay  evidence   in  matters    of  pedigree  ; 
viz.  that  the  statements  should  have  been   made    by  persons 
hkely  to  possess  a  competent  knowledge  of  the  facts,  to  which 
their  statements  relate.     It  has  been  supposed,  that  this  qual- 
ilication  nmst  necessarily  be  satisfied,   where  the  matter  is  of 
public  interest,  because,  as  Lord  Kenyon  observes,   "  all  man- 
kind being  interested  therein,  it  is  natural  to  suppose  that  they 
may  be  conversant  with  the  subject,  and  that  they  should  dis- 
course together  about  it,  having  all  the  same    means  of   infor- 
mation." (3)     And  Lord  Ellcuborough,  in  Weeks  v.  Sparke, 
states  it  as  being  the  general  understanding,    upon  which  the 
decisions  of  the  Courts  proceeded  ;     "  that    upon  questions  of 
public  right  all  are  interested,  and  must  be  presumed  conver- 
sant with  them."  (4) 
[  *267  ]       *In  the  case  of  Crease  v.  Barrett,  (1)  the  Court  observed, 
it  was  clear  that  hearsay  evidence  upon  some   subjects  could 
not  be  received,  unless  with  a  qualification,  that  it  came  from 
persons  who  had  a  special  interest  to   inquire  ;    that    in  cases 
of  pedigree  the  line  was  clearly  defined  ;  and    that    in   cases 
of   rights  or   customs,    which   are    not,    properly   speaking, 
public,  but  of  a  general  nature,   and  concern  a   multitude   of 
persons,  (as  questions  with  respect  to  boundaries  and  customs 
of  particular  districts,)  though  the  rule  is  not  so    clearly  laid 
down  it  seems  that  hearsay  evidence  is  not  admissible,  unless 
it  is  derived  from  persons  conversant  with  the  neighbourhood. 
The  Court  further  observed,  that  where    the    right   is    really 
public,  (a  claim  of  highway    for   instance,  in   which   all  the 
king's  subjects  are  interested,)  it  seems   difficult  to  say,    that 
there  ought  to  be  any  such  limitation,  and  the  Court  were  not 
aware,  that    there  was    any  case  in  which  it   had  been  laid 
down,  that  such  a   limitation  existed  ;    that  in   a  matter   ir^ 
which  all  were  concerned,  reputation  from  any  one    appeared 
to  be  receivable  ;  but  of  course  it  would  be  almost  worthless, 
unless  it  came  from  persons  who  were    shewn  to  have    some 
means  of  knowledge,   as  by  living  in    the  neighbourhood,  or 
frequently  using  the  road  in  dispute.       And  in  the  particular 
case,  which  related  to  a  custom  in  which  all  the  king's    sub- 
jects had  not  an  interest,    but  only  such  as  chose  to  become 
adventurers  in  mines  within  a  particular  district,  it  was   said 
that  hearsay  from  persons  wholly  unconnected  with  the  place 

(3)     Per  Lord  Kenyon  in  Morewood  is   tlius   dropped  in   conversation    upon 

1).  Wood,  14  E.ist,    329,  n.  and,    in  ihe  sucli    subjects   may  be    presunjed   to  be 

Beri<eley  peerage    case,    4  Canib.    416,  true." 

Cliief  .lusiicc    Alansfield,    says,     "that         (4)   In  Weeks  t).  Sparko,  1  Manic  & 

general  riglits  are  naturally  talked  of    in  Sclvv.  GS6. 
the    neighbourhood,  and  therefore,  what         (!)    1  Cr.  M.  &,  R.  927. 


Sect.  2.]  Matters  of  General  Interest.  241 

in  which  tlic  mines  were  found,  would  not  only  be  of  no  val- 
ue, but  probably  be  altogether  inadmissible.  But  it  was  held 
that  the  hearsay  was  admissible  of  persons  under  whose  es- 
tates the  minerals  lay,  with  respect  to  which  the  custom  ex- 
isted ;  for  that  they  were  suiliciently  connected  with  the  sub- 
ject, though  they  were  not  concerned  in  mining,  or  receiving 
the  dues  of  mines. 

In  Rogers  v.  Wood  (2)  before  cited,  we  have  seen  that  a 
document,  purporting  to  be  a  decree  of  certain  persons,  (the 
Lord  High  Treasurer,  Chancellor  of  the  Exchequer,  and  Un- 
der Treasurer,  Chief  Baron,  and  Attorney  and  Solicitor  Gen- 
eral, who  had  no  authority  as  a  Court,)  was  held  to  be  inad- 
missible, *as  evidence  of  reputation,  on  the  question  whether  f  *26S  1 
the  city  of  Chester,  before  it  was  made  a  county  ©f  itself, 
formed  a  part  of  the  county  palatine,  because  those  persons 
from  their  situations  had  no  peculiar  knowledge  of  the  fact. 

In  Weeks  v.  iSparke,  (1)  Mr.  J.  Le  Blanc  lays  stress  upon 
the  circumstance,  that  the  evidence  of  reputation  in  that  case 
l)roceeded  from  persons  who  have  been  conversant  with  the 
neighbourhood,  where  the  waste  lay  to  which  their  statements 
referred  ;  and  that  no  evidence  was  received,  except  from 
persons  connected  with  the  district  then  in  question. 

On  the  other  hand,  actual  inhabitancy  in  the  place,  the 
boundaries  of  which  are  in  dispute,  is  unnecessary.  In  the 
case  of  The  Duke  of  Neivcastle  v.  tJie  Hundred  of  Brox- 
toice,  (2)  justices  of  the  peace,  at  the  sessions  of  the  county, 
within  which  the  district  was  alleged  to  be,  were  considered, 
on  account  of  the  character  and  nature  of  their  office,  without 
proof  of  their  being  residents,  to  have  sufficient  connection 
with  the  subjects  in  dispute,  to  render  the  statements  in  their 
orders  admissible  evidence  of  reputation. 

The  probable  want  of  competent  knowledge  in  the  person  I'ecinra- 
whose  hearsay  is  admitted,  is    usually  alleged  as  the  ground  linuVrs  of 
for  rejecting  such  evidence  respecting  matters  of  private  inter-  j'.ri^ate 
est.       "How  is  it  possible  for  strangers,"  said  Lord  Kenyon,  Absemeof 
"  to  know  any  thing  of  what  concerns  only  private  titles?"  (3)  r""i;r",''^ 
Even,  if  tlie  evidence  were  confmed  to  statements  of  persons  "  * 

immediately  interested  in  the  private  rights  in  (j^uestion,  it  is 
to  be  observed,  that  in  cases  of  private  right  the  hearsay  would 
be  less  likely  to  be  checked  and  contradicted  at  the  time,  if  in- 

(2)   2  I'>ing.  8(),  mpra,\t.  2G4.  v.  Wooil,  II  K;isi,  :J2!»,    n.  Lord  Ken- 

(1)  I  iVliiulc  &  Selw.  ()S8,  68f).  yon    a|)plics     lliis    oli.surv;iiioii    also     hi 

(2)  4  15.  &  Ad.  273.  The  ordurs  piiviilt;  cuatoiiis.  l>ord  Klliiiilntioiijjli,  in 
which  contained  a  statement  that  Not-  VVucks  v.  Spaike,  1  ftlaulo  &  ydw. 
tingham  Castle  vva«  within  tho  hundred,  ()S(»,  observe.;,  "  It  is  said,  that  upon 
were  received  as  evidence  of  reputation,  questions  of  public  right  all  are  interested, 
not  as  orders  upon  matters  of  which  the  and  must  ho  presumed  conversant  vviih 
magistrates  had  jurisdiction.  them  ;  and  that  is  the  disiinclion    taken, 

(3)  I'ci-  Lord  Kenyon,  in   Morewood  between  puhlic  and  private  rights." 

31 


242  Hearsay  Evidence.  [Ch.   13. 

correct,  iLaii  where,  as  in  matters  of  general  interest,  it  is  sup- 
posed to  be  addressed  to  persons  conversant  with  the  subject, 

[  *26C  J  *  or  having  an  interest  to  inquire  into  it,  with  the  means  of 
investigation  in  their  power.  (1)  In  Talbot  v.  Lcicis  (2)  the 
answer  of  tenants  of  a  manor  to  a  commission  issued  by  the 
lord  of  the  manor,  in  which  it  was  stated  that  the  lord  was 
entitled  to  wreck,  was  rejected,  on  the  ground  that  the  right 
was  a  private  right,  of  which  the  };arties  making  the  declara- 
tions possessed  no  jieculiar  means  of  knowledge. 

Proof  aii-         jt  -would  sccm,  whcrc  proceedings  in  an    ancient  suit  are 

capnchy.  produccd  as  evidence  of  reputation  upon  matters  of  public  or 
general  interest,  it  may  be  presumed  that  the  parties  to  the 
suit  and  the  witnesses  were  actually  in  the  respective  capaci- 
ties which  they  purport  to  have  been,  without  proving  this 
by  evidence  dehors  the  proceedings  themselves.  (3)  Thus, 
ill  Freeman  v.  Fh'ill'i;i)ps,{A)  an  action  by  a  copyholder 
against  the  lord  of  a  manor,  in  which  the  defendant  gave  in 
evidence  the  proceedings  in  a  suit  in  Equity  in  the  time  of 
King  William  III.,  brought  by  another  copyholder  of  the  same 
manor  against  the  then  lord,  it  was  held  that  no  evidence  ali- 
unde was  requisite  to  make  the  proceedings  admissible.  Mr. 
J.  Bayley  says,  "  We  must  assume  at  this  time  of  day  that 
the  bill  was  not  a  mere  fabrication,  but  was  really  filed  by 
such  a  copyholder  against  the  lord,  and  that  the  trial  was  had, 
and  the  depositions  made  between  such  parties,  as  were  really 
litigating  their  rights  in  the  characters  claimed  and  disclosed 
on  the  record."  And,  afterwards,  with  respect  to  the  deposi- 
tions, the  same  Judge  observes,  "  These  I  do  not  look  upon 
merely  as  the  declarations  of  persons  unconnected  with  the 
subject,  but  as  the  dcqfositions  of  persons,  made  by  them  in 
the  character  of  witnesses  brought  forward  by  the  copyholder, 
whose  interest  it  was  to  put  foremost  such  wntnesses  as  were 
best  able  to  depose  the  matter  in  dispute.       Why  am  I  to  as- 

r  #270  1  si^iiT^G  that  *the  copyholder  brought  forward  witnesses  who 
were  ignorant  ?  I  do  not  agree  that  it  was  necessary  to  prove 
the  witnesses  to  have  been  copyholders,  in  order  to  let  in  their 
testimony.  The  plaintiff's  witnesses  in  the  last  trial  do  not 
all  appear  to  be  copyholders,  yet  as  they  were  present  at  the 
holding  of  Courts,  and,  therefore,  knew  what  passed,  they 
were  com])etcnt  to  speak  to  that.  So  in  the  former  suit,  I 
cannot  infer  that  they  were  incompetent  to  have  a  knowledge 

(1)  It  will  be  seen,  afterwards,  that  Sect.  1.  Banbury  and  Berkeley  peerage 
no  olijection  arises  from  the  circum-  cases.  The  same  point  occurs  in  regard 
stance  of  tiic  declarant  being  in  pari  to  declarations  against  interest,  infra, 
jure,  with  the  person  afterwards  using  Davies  v.  Morgan,  1  Cr.  &  I.  591. 
the  declaration.  See    Adamthwaite  v.  Synge,    1   St.   C. 

(2)  1  Cr.  M.  &:  R.  497.  189.  It  would  seem  that  a  uniform  prin- 

(3)  A  stricter  rule  lias  been  laid  down  ciple  ought  to  prevail  in  all  these  cases, 
in   some   pedigree  cases,  vide   supra,         (1)  Maule  &i  Selw.  495. 


Sect.  2.]  Matters  of  Genrral  Interest.  243 

of  the  tacts  they  deposed  to :  on  the  contrary,  it  is  to  be  pre- 
sumed they  had  a  competent  knowledge,  being  brought  for- 
ward as  witnesses  by  a  copylioldor."  (1)  Lord  Ellenl)orough, 
in  the  same  case,  observes,  "  Considering  the  depositions  as 
made  in  a  suit,  which  may  now  be  said  to  be  lost  in  remote 
antiquity,  we  should  give  tliis  record  but  very  little  effect,  if 
we  did  not  attribute  to  it  verity  in  many  of  the  particular 
matters  which  it  contains  ;  such  as  that  the  parties  litigant 
were  clothed  with  the  rights  in  which  they  profess  to  stand, 
and  were  agitating  the  claim  put  forward  on  the  record."  (2) 

Another  qualification,  or  cautionary  rule,  in  receiving  hoar-  Proof  of 
say  evidence  in  matters  of  pubhc  or  general  interest,  has  been  joymeui. 
supposed  to  be,  at  least   where  the  nature  of  the  case  admits, 
that  a  foundation  for  it  should  be  laid  by  ])roving  acts  of  mod- 
ern enjoyment.     Mr.  Justice  Lo    Blanc,    in  speaking  of  the 
manner  in  wliich  matters    of  this    nature  are    to    be    proved, 
says,  (3)  "  First,  they  are  to  be  proved  by  acts  of  enjoyment 
within  the  period  of  living  memory  ;  and  when  that  founda- 
tion is  laid,  then  inasmuch   as  there  cannot  be    any  witnesses 
to  speak  to  acts    of   ^enjoyment    beyond   the  time    of  living  [  *271  ] 
memory,  evidence  is  to  be  admitted  from  old  persons  of  what 
they  have  heard   other   persons  of  the   same  neighbourhood, 
since  deceased,  say  respecting  the    right."      Again,    "  after  a  . 
foundation  is  once  laid  for  the  right  by  proving  acts  of  owner- 
ship the  evidence  of  reputation  becomes  admissible."       And 
Mr.  Justice  Buller  observes,  in  Moreioood  v.  Wood,  (1)  "  Thus 
far  I  agree  with  Lord  Kenyon  and  Mr.  Justice    Ashurst,    that 
in  no  case  ought  evidence  of  reputation  to  be  received,  except 
a  foundation  be  laid,  by  other  evidence,  of  the  right." 

But  in  the  late  case  of  Crease  v.  Barrett  (2)  in  answer  to 
an  observation,  that  all  evidence  of  reputation  was  inadmissi- 
ble, unless  confirmed  by  proof  of  facts,  it  was  said  that  such 
proof  was  not  an  essential  condition  of  it's  reception ;    but 

(1)  The  rule  is  laid  down  in  the  judg-  character  of  iha  piirtie.s  does  not  appear 

ment  cited  in  tlie  text  vvitii  great  latitude,  to  be  a  good  lexson  for  giving  such  cred- 

For,  it  is  presumed,   that  the   declarants  it.        In  DglIW  v.  Spray,  1  T.  \l,   il'->,  a 

were  persons  whose  hearsay  was  adniis-  case  relating  to  a  copyhold  custom,  crcd- 

sihle,   from  the  circumstance    that    they  it  was   given  to  the  purport  ol    a  docu- 

were   witnesses,  and  professed  lo   iiava  ment,  professing  to  be    ex  usben.sii  om- 

knowlcdge    of  the   facts.      Mr.   .lustice  ninm  tcncntiuni. 

liayley,  in  another  part  of  his  judgment,  (:J)  In  Weeks  v.  Sparko,    1  Maule  & 

a[)pear3  to  have  considered  the  plainlill's  Selw.  CHS. 

in  the  two  suits  as  identilied  in  interest,  (I)  11  East,  330,  n.,  and  see  Rat- 
as  much  as  if  tin;  plainlill"  in  ijio  latter  clill"  v.  Chapman,  4  Leon.  212,  corn- 
suit  had  derived  title  from  the  plainlill'iii  inentod  on  in  5  T.  II.  32.  In  White  v. 
the  former.  And  he  speaks  of  the  pro-  Lisle,  1  Madd.  2  1-1,  the  Vice  Chancellor 
ceedings  being  inter  eosdein  aclu.  l»ut  says,  that  evidence  of  reputation  was 
it  would  seem  that  the  proceedings  were  only  admitted  in  confirmation  of  actual 
admitted  on  the  footing  of  reputation,  enjoyment,  and  not  against  it. 
and  not  of  a.  re.H  jndirata.  (2)    1  Cr.  M.  &  11.     There  was,  how- 

(2)  That  little   efiect  would  ho  given  ever,  sulllcient  proof  of  cnjoynnint  giv- 

lo  the  record  without  giving  credit  to  the  en  ni  the  case. 


244 


Hearsay  Evidence. 


[Ch.  13. 


that  it  was  only  material  as  aftected  it's  value  when  received. 

Where  the  subject  matter  of  the  question  does  not,  from  it's 
nature,  admit  of  acts  of  enjoyment,  as  in  a  question  of  paro- 
chiality,  proof  of  rei)utation,  unaccompanied  by  evidence  of 
acts  done,  is  admissible.  On  a  question  respecting  the  cus- 
tom of  descent  within  a  manor,  it  has  been  held,  that  repu- 
tation is  admissible,  without  shewing  any  instances  of  it's 
having  been  put  in  use.  (3)  For  were  it  otherwise,  if  no  in- 
stances were  to  happen  within  the  memory  of  man,  and  the 
old  Court  Rolls  were  to  be  lost,  the  custom  itself  would  be 
entirely  destroyed;  (4)  and  in  Steele  v.  Prickett,  Lord  Ten- 
terden  intimated  an  opinion,  that  the  existence  of  a  manor 
[  *272  ]  *raight  be  proved  by  reputation  alone,  without  evidence  of 
the  exercise  of  any  manorial  rights.  ( 1 ) 

The  next  qualification,  in  receiving  hearsay  evidence  of 
matters  of  public  or  general  interest,  is  one  which  equally  ap- 
plies to  hearsay  evidence  in  matters  of  pedigree  :  the  consid- 
eration of  it  has  consequently  been  postponed,  until  it  could 
be  illustrated  by  examples  drawn  from  both  subjects.  (2)  This 
qualification  is  commonly  expressed  by  saying  that  declara- 
tionsjto  be  receivable,  must  have  been  made  atite  litem  motem. 
The  phrase  is  borrowed  from  the  civil  law,  the  commenta- 
tors upon  which  had  made  the  declarations  in  question  the 
subject  of  learned  remarks,  long  before  they  became  a  matter 
of  attention  to  English  lawyers. 

The  first  case,  in  which  the  precise  time  of  making  the 
declarations  became  the  subject  of  particular  inquiry  and  con- 
sideration, was  the  Berkeley  peerage  case.  (3)  This  case 
came  before  the  House  of  Lords  A.  D.  1811  :  the  only  mat- 
ter of  controversy  depended  on  the  reality  of  the  first  mar- 
riage alleged  to  have  taken  place  between  the  parents  of  the 
claimant.  A  question  was,  on  that  occasion,  proposed  to  the 
Judges,  in  the  following  terms:  (4)      "Upon  the    trial  of  an 


Declara- 
tions ante 
litem  mo- 
tam. 


Berkeley 

peerage 

case. 


(3)  Beebee  v.  Parker,  5  T.  R.  26, 
31.  Doe  d.  Foster  v.  Sisson,  12  East, 
62.  In  this  case,  however,  some  par- 
ticular instances  of  a  more  confined  cus- 
tom were  proved  :  which  Lord  Ellenbor- 
ough  described  as  branching  out  of  the 
same  root. 

(4)  Per  Grose,  J.,  5  T.  R.  32.  For 
this  reason  a  single  instance  is  allowed 
to  be  evidence  of  a  custom.  Roe  v.  Jef- 
frey, 2  Maale  &  Selw.  92.  Doe  v.  Ma- 
son, 3  Wils.  63.  In  Godb.  55,  it  is 
said,  that  in  the  prescription  of  Gavel- 
kind, it  must  be  shewn  that  the  land  is 
partible  and  has  been  parted,  but  this  is 
denied  to  be  law,  unless  it  be  confined 
to  such  lands  of  this  nature  as  lie  out  of 
the  county  of  Kent,  Robins,  on  Gravel- 
kind,  49. 

(1)  2  Stark.  C.  466.     This  was  ruled 


by  Lord  Kenyon  in  Curzoa  v.  Lemon,  5 
Esp.  60. 

(2)  Vide  supra,  sect.  1. 

(3)  4  Camp.  491.  The  earlier  cases 
on  the  subject  were  contradictory.  I'ut 
the  question  cannot  be  considered  as 
having  been  maturely  discussed  before 
the  Berkeley  peerage  case.  The  au- 
thorities prior  to  that  case  were  Vin.  Abr. 
T.  b.  91.  Haywood  v.  Firmin,  Sitt.  af- 
ter Trin.  Term,  1766,  cited  by  Law- 
rence, J.,  in  the  Berkeley  peerage  case. 
Goodright  v.  Moss,  Cowp.  594,  Lord 
Camden  had  ruled  for  receiving  the  evi- 
dence. Chief  Baron  Reynolds  and  Mr. 
Justice  Eyre  for  rejecting  it.  See  Sla- 
ney  v.  Wade,  1  Myl.  &  Cr.  338,  su- 
pra, as  to  copies  j'ost  litem  motam  of 
an  ancient  monumental  inscription. 

(4)  May  2,  1811,  MS.       . 


Sect.  2.]  Matters  of  General  Interest.  245 

ejectment  respecting  Black  Acre  between  A.,  and  B.  (in 
which  it  was  necessary  for  A.  to  prove  that  he  was  the  legiti- 
mate son  of  J.  S.)  A.,  after  proving  by  other  evidence  that  J. 
S.  was  his  reputed  fatlier,  otfered  to  give  in  evidence  a  deposi- 
tion made  by  J.  S.  in  a  cause  in  Chancery,  instituted  by  A. 
against  C.  D.,  in  order  to  perpetuate  testimony  to  the  alleged 
fact  (disputed  by  C.  D. )  *that  he  was  the  legitimate  son  of  [  *273  ] 
J.  S.,  in  which  character  he  claimed  an  estate  in  remainder 
in  White  Acre,  which  was  also  claimed  in  remainder  by  C. 
D.,  B.,  the  defendant,  in  the  ejectment  did  not  claim  Black 
Acre  under  either  A.  or  C.  D.,  the  plaintiff  and  defendant  in 
the  Chancery  suit.  According  to  law,  could  the  deposition 
of  J.  S.  be  received  in  evidence  upon  the  trial  of  such  eject- 
ment against  B.,  as  evidence  of  declarations  of  J.  S.  the  alleg- 
ed father,  in  matters  of  pedigree  ?"  The  Judges  who  were 
present  afterwards  stated  their  opinions  at  length,  and  with 
only  one  dissentient  voice,  agreed  in  considering  the  deposi- 
tion of  J.  S.  to  be  inadmissible.  Mr.  Justice  Lawrence  deliv- 
ered his  opinion  in  the  following  terms  :  (1)  "  The  declara- 
tions of  members  of  the  family,  in  matters  of  pedigree,  are 
generally  admitted,  from  the  necessity  of  the  case;  but  the 
administration  of  justice  would  be  perverted,  if  such  declara- 
tions could  be  admitted,  which  have  not  a  presumption  in 
their  favour,  that  they  are  consistent  with  truth.  Where  the 
relator  had  no  interest  to  serve,  and  there  is  no  ground  for 
supposing  that  his  mind  stood  otherwise  than  even  upon  the 
subject  (which  may  be  fairly  inferred  before  any  dispute  upon 
it  has  arisen),  we  may  reasonably  suppose,  that  he  neither 
stops  short,  nor  goes  beyond  the  limits  of  truth,  in  his  sponta- 
neous declarations  respecting  his  relations  and  the  state  of  his 
family.  The  receiving  of  these  declarations,  therefore,  though 
made  without  the  sanction  of  an  oath,  and  without  any  op- 
portunity of  cross-examination,  may  not  be  attended  with  such 
mischief  as  the  rejection  of  such  evidence,  which  in  matters 
of  pedigree  would  often  be  the  rejection  of  all  the  evidence 
that  could  be  offered.  But  mischievous  indeed  would  be  the 
consequence  of  receiving  an  ex  parte  statement  of  a  deceas- 
ed witness,  although  upon  oath,  procured  by  the  party  who 
would  take  advantage  of  it,  and  delivered  under  that  bias 
which  may  naturally  operate  on  the  mind  in  the  course  of  a 
controversy  upon  the  subject.  Notwithstanding  Avhat  is  said 
in  the  case  of  Stevens  v.  Moss,  I  cannot  think  that  Lord  Mans- 
field would  have  held,  that  declarations  in  matters  of  pedigree 
made  after  the  controversy  *had  arisen,  ought  to  be  submitted  [  *274  ] 
to  the  jury.  They  stand  precisely  on  the  same  footing  as 
declarations  on  questions  of  rights  of  way,  rights  of  common, 
and  other  matters   depending  upon   usage  ;    and  although  I 

(1)  4  Campb.  409. 


246  Ilcarsrnj  Evidence.  [('li.   13. 

cannot  call  to  mind  llie  ruling  of  any  j^articular  Judge  upon 
the  subject,  yet  I  know  that  according  to  my  experience  of 
tlui  l)ractice  (an  experience  of  nearly  forty  years),  whenever 
a  witness  has  admitted,  that  what  he  was  going  to  state  he 
had  heard  after  the  beginning  of  a  controversy,  his  testimony 
has  been  uniformly  rejected.  If  the  danger  of  fabrication 
and  falsehood  be  a  reason  for  rejecting  such  evidence  in  the 
cases  of  prescription,  that  willc(|ually  apply  in  cases  of  pedi- 
gree, where  the  stake  is  generally  of  much  greater  value." 
Then,  after  referring  to  the  decided  cases,  the  learned  Judge 
added, — •'  The  authorities  being  thus  balanced,  I  thiidc  the 
point  must  be  considered  as  without  any  decision,  and  we 
must  resort  to  principle  and  the  uniform  practice,  which  has 
obtained  in  rpiestions  of  prescription.  Hardships  may  arise 
in  rejecting  declarations  made  between  the  cammencement  of 
the  suit  and  the  time  of  trial ;  but  such  hardships  are  not 
confined  to  the  case  of  pedigree.  In  other  cases,  if  witnesses 
die  before  the  trial  of  the  cause,  the  party,  who  relied  upon 
their  testimony,  must  sustain  the  loss.  For  avoiding  uncer- 
tainty in  judicial  proceedings,  general  rules  must  be  laid  down 
and  adhered  to,  without  regard  to  our  feelings  or  our  wishes 
on  particular  occasions.  Besides,  the  hardship,  may  general- 
ly be  avoided  by  a  bill  to  perpetuate  testimony.  Although 
the  exclusion  of  declarations  made  in  the  course  of  the  con- 
troversy may  prejudice  some  individuals,  it  is  better  to  submit 
to  this  inconvenience  than  expose  courts  of  justice  to  the 
frauds  which  would  be  practised  upon  them  if  a  contrary  rule 
were  to  prevail.  That  this  is  not  an  imaginary  apprehension, 
will  appear  from  what  happened  in  the  J^ouglas  and  Angle- 
sea  causes  :  in  the  first  of  which,  fabricated  letters  were  giv- 
en in  evidence  ;  and  in  the  second,  false  declarations.  Not- 
withstanding the  danger  of  incurring  the  penalties  of  the 
crime  of  perjury,  there  is  scarce  an  assize  or  sittings  in  which 
witnesses  are  not  produced,  who  swear  in  direct  contradiction, 
the  one  to  the  other :  and  it  may  be  feared,  that  persons,  who 
[  *275  ]  have  as  little  *regard  to  truth,  may  be  induced  to  make  false  de- 
clarations, when  they  run  no  risk  of  punishment  in  this  world, 
as  no  use  can  be  made  of  their  evidence  till  after  their  death. 
We  know  that  passion,  prejudice,  party,  and  even  good-will, 
tempt  many  who  preserve  a  fair  character  with  the  world,  to 
deviate  from  the  truth,  in  the  laxity  of  conversation.  Can  it 
be  presumed  that  a  man  stands  perfectly  indifferent,  upon  an 
existing  dispute  respecting  his  kindred  ?  His  declaration  post 
litem  viotam,  not  merely  after  the  commencement  of  the  law- 
suit, but  afte)^  the  dispute  has  arisen  (that  is  the  primary 
meaning  of  the  Avord  lis,)  are  evidently  more  likely  to  mislead 
the  jury  than  to  direct  them  to  aright  conclusion,  and, therefore, 
ought  not  to  be  received  in  evidence.     I  am  likewise  of  opin- 


Sect.  2.]  Mailers  of  General  Inlerest.  247 

ion,  that  no  deposition  can  Ijc  received  in  evidence  as  a  de- 
claration, to  prove  a  fact  which  it  was  tlie  object  of  that  de- 
position to  estabhsh.  A  deposition  is  the  answer  of  the  wit- 
ness to  such  interrogatories  as  it  is  thought  expedient  to  put 
to  him  to  estabhsh  certain  facts  wliich  the  plaintiff  alleges, 
and  on  which  the  case  depends.  Consequently,  a  deposition 
is  considered  a  partial  representation  of  facts,  as  to  all  persons 
who  have  no  opportunity  of  bringing  out  the  whole  truth  by 
cross-examination  ;  and  on  that  account  all  admit,  that,  against 
a  stranger,  it  cannot  be  received  in  evidence  as  a  deposition. 
How  then  shall  it  be  received  as  a  declaration  ?  In  that  case, 
the  circumstances  of  it's  being  upon  oath  cannot  be  regarded. 
To  consider  it  a  declaration  on  oath  would  be  to  receive  it  as 
deposition.  As  a  declaration,  it  is  still  subject  to  the  same  vice 
and  infirmity,  of  being  an  answer  to  particular  questions  art- 
fully ])ut,  with  an  interested  view,  by  one  party  behind  the 
back  of  another.  All  the  objections  by  which  it  is  allowed 
that  this  document  cannot  be  received  as  a  declaration,  apply, 
with  at  least  equal  strength  to  receiving  it  as  a  deposition. 

The  summary  of  the  doctrine  is  given  by  Lord  Eldon,  in 
a  pedigree  case,  where  he  says,  that  "  the  admissibility.of  tra- 
ditionary evidence  is  founded  upon  the  presumption,  that  the 
words  given  in  evidence  are  the  natural  effusion  of  the  party, 
*upon  an  occasion  when  his  mind  stands  even,  without  bias,  [  *276  ] 
to  exceed  the  truth  or  to  fall  short  of  it."  (1) 

With  respect  to  the  particular  meaning  of  the  term  lis  mo-  jjs  mota 
la,  it  has  been  seen  that  Mr.  Justice  Lawrence  says,  that  "de-  'i*^^'"'^^- 
clarations  j^;os^  litem  motcvm,  not  merely  after  the  commence- 
ment of  the  lawsuit  but  after  the  dispute  has  arisen,  (that 
is  the  primary  meaning  of  the  word  lis)  ought  not  to  be  re- 
ceived in  evidence."  And  in  the  case  of  Monkton  v.  The  At- 
torney General,{1)  also  a  case  of  pedigree,  the  Lord  Chancel- 
lor says,  "  shew  me  that  the  pedigree  in  question  was  prepar- 
ed with  a  view  of  profiting  the  maker  of  it,  or  those  in  whom 
he  is  interested  ;  bring  it  within  the  rule  either  of  Wliitclocke 
V.  Baker  or  the  Berkeley  peerage  case  ;  prove  that  it  was 
madcjjos^  litem  motam — not  meaning  thereby  a  suit  actually 
])ending,  but  a  controversy  existing — and  that  the  person  ma- 
king or  concocting  the  declaration  took  part  in  the  controver- 
sy ;  shew  me  even  that  there  was  a  contemplation  of  legal 
proceedings,  with  a  view  to  which  the  pedigree  was  manufac- 

(l)  Whitelock  V.  Baker,  13  Ves.  .511.  drawing  evidence  from    perfectly  nnpol- 

In  Freeman  v.  riiillipps,!Vlr.  Justice  Bay-  luted  sources.     The  Lord  Clinncellor,  in 

ley    says,    "  wliere  there  is  a  lis  mota,  Moncktori    v.    Atty.    G'en.,    2    Russ.    &     • 

you  cannot  bo  Hure,  tli.it  in  admitting  tlie  Myl.    161,  says,    lliat   in   the    Berkeley 

depositions     of  witnesses    selected    and  peerage    case,    Mr.    .Justice    Lawrence 

brought  forward  on    a   particular  side  of  adopts  almost  tlie  very  language  of  Lord 

the    fjuestion,   who   embark  to  a  cerlaiu  Eldon  in  VVhitelocke  c.  Baker, 

degree   with    the  feelings  and  prejudices  (2)   2  Kuss.  &  Myl.  liii. 
belonging  to  tliat  particular  bide,  you  arc 


24S  Hearsay  Evidence.  [Chap.   13. 

tared,  and  I  shall  then  hold,  that  it  comes  within  the  rule 
which  rejects  evidence  fabricated  for  a  purpose,  by  a  man  who 
has  an  interest  of  his  own  to  serve.  The  question,  then,  al- 
ways will  be,  was  the  evidence  in  the  particular  circumstan- 
ces manufactured,  or  was  it  sjxintancous and  natural?" 

Where  a  person  died  possessed  of  property,  which   many 
years  afterwards  another  person  commenced  a  suit  to  recover, 
and,  in  the  year  after  the  first  person's  death,  a  relation  of  the 
second  person  made  a  declaration,  the  etfect  of  which  was  to 
[  *277  ]  *prove  tiiat  he  was  the  heir  and  next  of  kin  of  the  hrst  person, 
it  was  held  that  the  second  person  could  not  avail  himself  of 
such  a  declaration  in   evidence.        It  was  argued,  that  if  the 
existence  of  a  controversy  were  essential  to  the  exclusion   of 
the  evidence,  a  party  might  lie  by  and  make  no    controversy, 
tiU  he  had  got  a  suflicicnt  body  of  such  evidence.      The  evi- 
dence was  rejected  by  Alderson,  B.,  on   the  principle  that  the 
commencement  of  the  controversy  must  be   taken  to    be  the 
arising  of  that  state  of  facts  on  which  the  claim  is  founded 
without  any  tiling  more.  (1) 
Kiio\vio(i-c       Cliicf  Justice  Mansfield,  in  his  iudgment   in  the    Berkeley 
i>y  tiecia-     peerage  case,  after    giving  the    same    definition    of   lis  mota, 
'^^"''  saying,  that  the  line  of  distinction  was  the  origin  of  the  con- 

troversy and  not  the  commencement  of  the  suit^  expressed  his 
opinion  that  all  declarations  are  to  be  excluded  after  the  con- 
troversy has  originated,  whether  it  was  or  was  not  knoion  to 
the  witness  ;  he  said,  if  an  inquiry  were  to  be  instituted  in 
each  instance,  whether  the  existence  of  the  controversy  was 
known  at  the  time  of  the  declaration,  much  time  would  be 
wasted  and  great  confusion  produced.  (2) 
Lis  mota.         In  ouc  casc,  (3)  upon  a  question  of  boundary  between  two 

General 

(1)  Walker   ».   Beauchamp,    6  C.  &  son    for   it  are  thus  mentioned  :  "  Isttid 
P.  652.  aiUein  quod  dixiinus,  debere    testes    de- 

(2)  4  Campb.  417.  Per  Alderson,  horiere  ante  litem  motuin,  sic  est  accipi- 
B.,in  WalUer  v.  Beauchamp,  6  C.  &  P.  oiidum  ut  verum  sit,  si  il)ideni,  ubi  res 
(iGi).  Among  the  civilians  tiie  following  agitur,  audierit :  at  si  alibi  in  loco  qui 
ciisiinctioa  prevailed  upon  this  subject,  longissiiiie  distaret  sic  intellexeiit,  etiam 
'The  goucial  rule  was,  as  with  us,  that  post  litem  motam,  testes  do  audim  ad- 
liearsiiy  po>,t  litem  motam,  was  inad-  niiltuntur.  Loiigiiicjuitas  enini  loci  in 
inissible  in  questions  of  consanguinity,  as  causa  est  ut  oiiiiiis  suspicio  abesse  videa- 
well  as  of  boundary;  but  if  the  witness  tur,  qua;  quidem  suspicio  adesse  potest, 
proved  that  he  heard  the  fact  in  a  place  quando  testis  de  auditu  post  litem  mo- 
very  far  distant  from  that  ubi  res  agi-  tam,  ibidem,  ubi  res  agilur,  deponit. 
tur  even  ihaagh  post  litem  motam,  iiis  Mascardiis  Conclus.  410,  n.  5." 
evidence  was  to  be  admitted.  In  Mas-  (3)  Nicholls  v.  Parker,  Exeter  gum- 
carilux  de  Probationihus  (which  is  in  mer  Assizes,  1805,  14  East,  331,  n. 
all  likelihood  the  same  book  as  that  to  Le  Blanc,  J.,  in  this  case  says,  "that 
which  Chief  Justice  Mansfield  refers,  (4  there  was  no  dispute  at  the  time  respect- 
Campb.  417,)  as  being  a  treatise  of  ing  the  right  of  the  old  persons  making 
great  learning,  entitled  De  Probationi-  the  declarations,  at  least  no  litigation 
bus,)  in  which  the  distinction  between  pending  ;  so  that  tliese  persons  could  not 
ante  litem  motam  and  post  litem  mo-  bo  considered  as  having  it  in  view  to 
iam  is  taken,  after  a  statement  of  the  make  evidence  for  themselves  at  the 
general  rule,  this  exception  and  thu  rea-  time."     So  that   the  principle  was  ad- 


rin-lit5. 


Sect.  2.]  Matters  of  General  Interest,  24S^ 

*parishes  and  manors,  declarations  were  admitted,  although  [  *278  ] 
the  boundary  had  been  long  in  dispute  between  the  respec- 
tive parishes  and  manors,  and  intersecting  perambulations  had 
been  made  both  before  and  after  the  declarations,  there  beins; 
no  litigation  actually  pending  at  the  time.  The  rule  respect- 
ing lis  mota  does  not,  however,  appear  to  have  been  then  set- 
tled, and  it  may  be  doubted  whether  such  evidence  would 
now  be  admitted. 

In  a  case  at  ?im  jjrfws,  where  the  question  was,  whether 
the  occupier  of  a  particular  farm  was  liable  to  the  repair  of  a 
public  road,  and  to  prove  the  affirmative  an  award  was  produc-' 
cd,  which  had  been  made  some  years  before,  when  the  same 
question  was  tlie  subject  of  dispute  between  a  former  occupi- 
er and  the  township  Avhere  the  lands  were  situated,  the  evi- 
dence was  rejected  as  inadmissible.  "  The  very  submission," 
Mr.  Justice  Dampier  observed,  "  shews,  that  the  question  was 
then  agitated  between  the  township  and  the  occupier  ;"  and 
as  the  account,  which  deceased  witnesses  might  have  given 
to  the  arbitrator  on  that  occasion,  could  not  have  been  receiv- 
ed, because  the  declarations  were  made pos^  litem  Jiioiam,  so 
tlie  opinion  of  the  arbitrator  formed  upon  such  testimony 
could  be  entitled  to  no  more  credit.  ( 1 ) 

In  a  case,  where  an  ancient  presentment  of  a  homage  was 
produced,  according  to  which  the  jurors  purported  on  their 
oaths  to  have  considered  and  negatived  the  claim  of  a  freehold^ 
er  of  the  manor,  after  hearing  the  evidence  produced  by  him, 
the  presentment  was  held  to  be  inadmissible,  on  the  *ground,  [  *279  ] 
that  it  appeared  upon  it's  face  to  have  been  made  post  litem, 
moiam.  ( 1 ) 

It  would   seem  that  the  admissibility   of  hearsay  evidence  Lis  mota 
upon  a  different  controversy,  will  depend  on  the  circumstance,  "{j^f  p^,( 
whether  the  point  as  to  which  the  evidence  is  material    was  "<"  oinro- 
in  litigation,  or  whether  the  truth  of  it  was  assented  to  or  as-  ^"*^' 
sumed  by  both  the  contending  parties. 

In  the  case  of  Freeman  v.    Phillipps^{2)    an    action  was  Subject  of 

derlaralion: 


brought  by  a   copyholder   against   the   lord  of  a   manor,  in  nou' 
which  the  copyholder  relied    upon  a   custom,    that   the   lord  '•^'^• 
could  not  assess  a  fine  upon  filling   up  lives,  upon    copyholds 
held  for  life  without  the    intervention  of  the  homage.      The 

niifted  ;'  though  doubts  may  be  entertain-  ters  of  reputation,  notwithstanding  they 

ed  ds  to  it's   having   been   properly  ap-  necessarily  occur  post  litem  motam. 

plied.  (1)   Richards  v.  Liassett,    10  Barn.  & 

(1)  Rex  e.  Cotton,    3   Catnpb.     444.  Cress.  6.57. 

In  the  first  trial  of  the   Cambridge   toil  (2)   4  Maule  &  Selw.  493.     It  would 

case,  an  award  was  rejected  as  evidence  "seem  to  have  been   assumed   in  this  case 

of  the  reputation  ol  tolls  ;  and  also  an-  that  where  there  is  a   lis  mota,  duclara- 

oiher  award   was  rejected  on  the  siicond  tions  will  be  ina(!inissible,  thouj^'li  adduc- 

trial.      liut  a  composition  deed,  reciting  ed  against  a  [lerson   standing    in   pari 

the    award,     was    received  :     IJrett    v.  jure  with  the  declarant,  (there  being  n« 

Beales,  1  Mo.  k.  M.  4 IS.      It  lias  been  privity  betwoeu  them.) 
Been,  that  verdicts  are  evidence  in  inal- 

32 


itijta- 


250  Hearsay  Evidence.  [Ch.   13. 

lord  gave  in  evidence    tlic   proceedings    in   an   ancient   snit 
brought  by  a  copyholder  against  the  then  lord,   in  which  the 
copyholder  insisted  on  a  particular  custom  relative  to  the  fil- 
ling up  of  lives,  not  being  that  which  was  in  dispute    in  the 
latter  snit,  and  throughout  the   former  suit  no  mention  was 
made  of  the  approbation  of  the  homage  being  necessary.     The 
Court  held,  that  there  was  no  valid  objection  to  the  proceed- 
ings being  given  in  evidence,  because  the  lis  iJiota  was  not  on 
the  very  same  point,  and  that  the  proceedings  were  not  evi- 
dence of  any  thing  atlirmed  by  the  witnesses,  but  were  mate- 
rial on  account  of  what  the  witnesses  omitted  to  declare,  that 
is  to  say,  that  where  a  dispute  existed   concerning   the    copy- 
holder's right  to  renew,  on  some  terms,   it  was  never  made  a 
term  that  the  fine  should  be  assessed  by  the  homage.     In  the 
case  of  the  Duke  of  Newcastle  v.    The  Hundred   of  Brox- 
lowe,  (3)  orders  of  magistrates  at  sessions   were  received  as 
evidence,  of  reputation   concerning  the    point  whether   Not- 
tingham Castle  v/as  situated  within  the  hundred  ;  for  although 
they  were  made  upon  controverted  matters,  there  was  no  con- 
troversy upon  that  particular  question. 
Sui.ject  of        *j^  ^  \r^^Q  claim  of  peerage,  a  private  pedigree,  which  had 
litigated,      been  compiled  by  the  father  of  the  claimant  with    a  view    to 
[  *280  J  su})port  a  claim  to  certain  estates,  and  laid  before  counsel   for 
that  purpose,  was  held  inadmissible  by  the   House   of  Lords, 
as  not  being  a  spontaneous  effusion,  but  made  for  a  particular 
object,  and  in  contemplation  of  litigation.  (])      The    peerage 
in  this  case  was  claimed  through  the  mother  of  the  claimant, 
and  not  only  were  the   controversies    therefore  different,   but 
the  father,  who  compiled  the  pedigree,  never  could  have  had 
an  interest  in  the  present  claim.       It  also  appeared,  that  when 

(S)  4  B.  &  Ad.  279.  could  be  received  only  de  bene  esse  the 
(1)  Slane  peerage,  printed  minutes,  matter  requiring  further  consideration  ; 
1830,  part  2,  p.  3.5,  and  part  3,  p.  6.  A  tliat  it  must  be  made  clear  ttiat  tiie  parly 
private  pedigree  found  among  tiie  papers  was  at  the  time  perfectly  independent  as 
of  liie  claiiriant's  family,  was  oflered  in  to  any  other  matter  which  iiiight  be  de- 
evidence,  but  it  appeared  that  it  had  cided  by  it.  It  afterwards,  however, 
been  compiled  by  tiie  fatiier  of  tlie  claim-  was  proved  tliat  this  pedigree  was 
ant,  with  a  view  to  support  a  claim  to  drawn  up  in  order  to  lay  claim  to  prop- 
certain  estates.  The  counsel  were  in-  erty,  and  had  been  laid  before  the  coun- 
formed  that  a  pedigree,  to  be  receivable,  sel  ;  and  although  it  was  stated  that  the 
must  be  a  spontaneous  efl'usion  ;  that  if  descent  was  taken  for  granted  on  both 
made  for  a  particular  object  in  contem-  sides,  counsel  were  informed  by  their 
plation  of  litigation,  it  was  not  receiva-  Lordships,  that,  if  a  person  sat  down, 
ble  in  evidence.  It  was  stated,  that  the  when  in  the  prospect  of  a  contest  for 
lather  of  the  claimant  who  made  out  the  property  to  propose  such  a  paper,  it  had 
pedigree,  could  have  had  no  interest  in  never  been  received  ;  that  the  parties 
this  question,  as  he  never  could  have  agreeing  in  the  statement  did  not  make 
made  this  claim,  because  the  claimant  any  difference  as  it  might  be  equally  for 
claimed  through  his  mother,  and  that  the  interest  of  each  party  to  admit  a 
there  had  not  then  been  any  proceedings  particular  fact  though  contrary  to  truth, 
instituted  of  which  they  had  any  kno<vl-  That  it  appeared  to  their  Lordships  this 
edge.  The  counsel  were  informed,  that  paper  could  not  be  received  on  the  pros- 
it appeared   to  their  lordships  that   this  ent  evidence. 


Sect.  2. J  Matters  of  General  Interest.  251 

the  claim  was  made  to  the  estates,  the  descent  was  tajven  for 
granted  on  both  sides  ;  but  their  Ijordships  held,  that  the  par- 
ties agreeing  in  the  statement  made  no  ditference,  as  it  might 
be  equally  for  the  interest  of  each  to  admit  a  particular  state- 
ment though  contrary  to  truth. 

The  distinction  between  this  case  and  that  of  Freeman  v, 
Phillipps,  seems  to  be  that  in  this  case,  though  the  two  claims 
were  essentially  diflerent,  yet  the  pedigree  or  subject-matter 
of  the  declaration  was  a  matter  litigated  in  both  ;  whereas  in 
the  other  case  *the  customs  respecting  which  the  declarations  [  *281  J 
were,  made  were  not  only  different  in  the  different  suits,  but 
in  the  ancient  suit  the  qualifications  of  the  lord's  right  by  the 
intervention  of  the  homage  appeared  not  to  have  been  in  dis- 
pute, but  to  have  been  tacitly  negatived  in  the  understanding 
of  both  plaintiff  and  defendant. 

The  rule  before  mentioned,  that  "  the  words  given  in  evi-  Deciara- 
dence  are  to  be  the  natural  effusion  of  the  party,  upon  an  oc-  '.'"^"^  To\a- 
casion  where  his  mind  stands  even,  without  bias,  to  exceed  turecomro- 
the  truth  or  to  fall  short  of  it"  must  be  received  with  certain  '''^^^■^' 
limitations.  (1)  For,  in  the  first  place,  declarations  will  not  be 
invalidated,  though  made  for  the  express  purpose  of  prevent- 
ing disputes  in  a  family.  Thus,  Lord  Mansfield  observes,  "I 
have  known  advice  given  to  a  father  and  mother  to  make  at- 
tested declarations  in  writing  under  their  hand,  of  the  precise 
time  of  the  birth  of  the  bastard  eigne  and  the  subsequent  mar- 
riage, to  prevent  controversy  in  the  family  touching  the  in- 
heritance." (2)  And  the  Judges,  in  their  answer  to  the  third 
query  in  the  Berkeley  peerage  case,  say  that  "an  entry  in  a 
Bible  or  any  other  book,  or  any  other  piece  of  paper  would 
be  admissible,  notwithstanding  it  was  proved  that  such  entry 
was  made  by  a  parent  for  the  express  purpose  of  establishing 
the  legitimacy  of  his  son,  and  the  time  of  birth,  in  case  the 
same  should  he  called  in  question  after  his  father's  death." 
They  add,  that  the  particularity  of  the  entry  would  be  a 
strong  circumstance  of  suspicion  ;  but  still  it  would  be  receiv- 
able, whatever  the  credit  might  be  to  which  it  was  enti- 
tled. (3) 

Upon  this  subject,  Brougham,  Lord  Ch.,  observes  in  Monk- 
ton\.  Attorney  General^  (4)  that  Lord  Mansfield's  remarks  in 
Goodright  v.  Moss,  sanction  the  doctrine,  that  the  having  a 
distinct  object  in  view  in  making  a  declaration,  by  parol  or  in 
^writing,  even  though  the  object  can  only  be  gained  by  af-  [  *282  ] 
terwards  using  the  declaration  in  evidence,  is  not  suilicient  to 

CD   2  Ifuss  &  Myl.  1.j9.  v.  W;uIc,  1  Myl.   &  C'r.,  supra,  copies 

CI)  In  (Goodright  w.  I\Io-t»!,  .591.     And  of  a  mural  inscription  were  hold  not  lia- 

see    Monkton  v.    Att.  Gen.  2    Rass.    &  I)lc    to    objection,    because  at   the    lime 

Myl.  161.  tliey  were  made   tiiere  was  a  poHsibilily 

(3)  4  Camp.  41S.  of  a  controversy  at   some  future    period 

(4)  2  Russ.   &  My  I    KM.     In  Slaney  contemplated. 


252  Hearsay  Evidence.  [Ch.  13. 

exclude  the  declaration.  If  the  father  or  mother  make  a  ped- 
igree for  the  purpose  of  preventing  disputes  in  the  family, 
Lord  Mansfield  said,  in  effect,  that  he  would  admit  that  pedi- 
gree in  evidence,  even  when  those  very  disputes  arise  ;  be- 
cause it  was  not  made  with  a  view  to  their  own  interest,  but 
to  preserve  a  constat,  as  it  were,  on  record,  of  facts  peculiarly 
within  their  knowledge,  (which  is  one  of  the  main  grounds 
of  admitting  such  hearsay  evidence)  and  that  the  observation 
that  it  was  made  for  the  purpose  of  settling  family  disputes, 
and  may  not  have  been  so  spontaneous  and  natural  as  some  of 
the  dicta  of  the  Judges  would  seem  to  require,  shall  only  go  to 
it's  weight  and  credit  with  the  jury,  and  shall  not  preclude  it's 
admission  by  the  Court. 
Dcciara-  It  wiU  be  no  valid  objection  to  the  evidence,  on  the  ground 

sons^n  por?'  of  bias,  that  the  party  making  the  declaration  may  have  stood, 
jure.  or  thought  he  stood,  in  pari  casu  with    the    party  tendering 

the  declargition.  And  although  the  party,  if  he  had  been 
living,  might  have  stood  in  the  very  situation  of  the  person 
who  tenders  his  declaration  in  evidence,  that  circumstance  is 
not  sufficient  to  exclude  it.  (1)  The  reason  of  admitting  the 
evidence  in  these  cases  appears  to  be,  that  since  competent 
knowledge  is  required  to  make  hearsay  receivable  in  matters 
of  tradition,  and  a  probability  also  of  the  declarations  having 
occurred  naturally  in  the  course  of  familiar  intercourse,  it 
would  almost  dry  up  such  sources  of  information,  to  require 
further  an  absence  of  all  bias  on  the  subject  of  the  declara- 
tions. It  has  been  thought  to  be  some  safeguard,  sufficient 
at  least  to  warrant  the  admissibility  of  the  evidence  upon 
points  where  no  better  evidence  can  commonly  be  expected, 
[  *283  ]  that  the  declarant  could  derive  no  advantage  from  *his  own 
statements,  and  that  there  was  at  the  time  no  exciting  cause 
to  induce  him  to  depart  from  the  truth.  (1) 
h  pedigree.  Thus  the  declarations  of  a  person  entitled  iiii  remainder, 
stating  the  extinction  of  the  issue  of  persons  standing  in  the 
line  of  entail  between  her  and  the  then  possessor  of  the  estate, 
were  held  admissible  for  the  plaintift'  claiming  through 
her.  (2)     And  in  a  peerage  case  before  the  House    of  Lords, 

(1)    Per    the   Lord     Chancellor,   in  would   cut  op   enlireiy   all  evidence  of 

Monkton  v.  Att.  Gen.,  2  Russ.  &  Myl.  reputation.     And  seethe  reasons  of    the 

159,  160.     The  Lord  Chancellor  said,  Barons  in  Mosely  v.  Davies,  11  Pr.  162, 

•' that  with  tlie  exception  of  Drummond'a  and  of  Graham,  B.  13  Pr.  236.     In  the 

case,   1  Leach,    Cr.  C.  578,  where  the  circumstances  of  absence  of  interest  and 

evidence  was  clearly  inadmissible    upon  excitement   of  litigation,  the   testimony 

other  grounds  there  was  no    warrant  for  is    less   suspicious    than    that    which    is 

saying  that  the  declarations  of  a  person  generally  given  on   a  trial.     And    where 

in    pari   casu,    were   inadmissible    in  there  is  not  an   open  examination,  as  in 

cases  of  pedigree."  the   proceedings  of  Courts  of  Equity,  it 

( 1 )   It  is  said  by  the  court,  in  Harwood  seems  entitled  to  nearly  equal  weight, 
r.  Sims,  VVightiy.    112,  that  the   reject-         (2)  Doe   d.  Tilmaji  v.   Tarver,    Ry, 

^ng  of  evidence  of  persons  in  ^flriju/e,  &  Moo.  141, 


Sect.  2.]  Matters  of  General  Interest.  253 

a  widow  was  allowed  to  prove  the  declarations  of  her  deceas- 
ed husband,  in  support  of  her  son's  title  ;  though  the  hus- 
band, if  living,  would  have  had  the  right  which  the  decla- 
rations tended  to  establish.  (3)  But  in  the  claim  of  Sir  Cecil 
Bishopp  to  the  barony  of  Zouch,  some  private  papers,  purport- 
ing to  be  the  pedigree  of  Lord  Zouch,  which  had  been  in  the 
possession  of  a  deceased  lady,  who  was  a  branch  of  the  fami- 
ly, were  held  inadmissible  by  the  House  of  Lords,  it  appear- 
ing that  this  lady  had  conceived  herself  entitled  to  the  peer- 
age which  the  petitioner  claimed.  (4)  It  is  probable,  howev- 
er, that  the  true  ground  of  rejection  was,  that  the  pedigree 
was  compiled  in  contemplation  of  a  claim. 

On  a  question  of  parochial  or  manorial  boundary,  the   de-  in  matters 
clarations  of  old  persons,  deceased,   are    admissible,    though  gen'eraiTn-' 
they  were  parishioners,  and  claimed  rights  of  common  on  the  '^^esi. 
wastes  which  their  declarations  had  a  tendency  to  enlarge.  (5) 
And  in  like  manner,  on  a  question  of  a  parochial  modus,    it  is 
allowable  to  give   in  evidence   the    declarations    of  deceased 
parishioners  and  occupiers  of  lands  in  the  parish,    who    were 
*liable  to  pay  tithe.  (1)     For  although  the  testimony  of  these  [  *284  ] 
persons,  when  alive,  would  have  been   inadmissible,    on  the 
ground  of  interest,  this  objection  does  not  apply  to  their  de- 
clarations, since  they  are  not  evidence,  till  a  period  when  they 
are  no  longer  available  for  the  authors.  (2)  In  Crease  v.  Bar- 

(3)  By  Lord  Tenterdeiij  C.  J.,  Ry.  &  Freeman  v.  Phjllipps,  4  MauJe  &•  Selw. 
Moo.  142.  Of  this  case  the  Lord  Chan-  491,  respecting  a  copyhold  custom,  the 
cellor  observes,  in  iMonkton  t).  Att.  Gen.,  Court  take  pains  to  show  that  the  an- 
2  Russ.  &  Myl.  16Q,  "A  stronger  in-  cient  depositions  which  were  admitted, 
stance  of  similarity  of  situation  can  hard-  were  of  persons,  standing  \n  jiari  jure 
]y  be  conceived,  and  this  case  certainly  or  eodem  jure,  and  Lord  Ellen- 
seems  to  go  a  great  way."  borough  appears  to  have  considered  that 

(4)  Zouch  of  Haryngworth  peerage  as  the  grouod  of  their  admissibility,  and 
printed  minutes,  1804,  p.  207.  he  says,  thai  in  the  case  of  Leeds  Mills, 

(5)  Nicholls  V.  Parker,  14  East,  331,  similar  depositions  were  received  as  the 
n.  depositions  of  persons   standing  in  pari 

(1)  Harwood  v,  Sims,  1  Wightw.  jure;  and  a  similar  doctrine  as  to  the 
112.  Mosely  D.  Davies,  11  Pr.  162,  privily  of  copyholders,  is  adopted  by 
180.  Deade  t).  Hancock,  13  Tr.  226.  Lord  Kenyon,  in  Heed  v.  Jackson,  1 
In  Mosely  v.  Davies,  11  Pr.  162,  it  Flast,  355.  It  would  seem,  however, 
was  said  by  Chief  Baron  Richards,  that  that  a  copyholder  was  not  bound  by  the 
the  witness  need  not  specify  from  declaration  of  a  copyholder  in  an  an- 
whoui  he  heard  the  declarations,  for  cient  suit,  still  less  by  that  of  a  wit- 
they  might  be  strangers,  or  their  names  ness,  produced  by  such  copyholder,  on 
might  be  forgotten.  In  this  case  the  account  of  his  standing  in  pari  jure 
principle  upon  which  declarations  of  with  himself,  (there  being  no  privity  of 
persons  in  pari  jure  are  admissible,  blood  or  estate  proved) ;  but  on  account 
was  much  considered.  of  his  being  conversant  with  the  facts  of 

(2)  Per  Graham,  B.,13  Pr.  236,  on  which  be  was  speaking.  Neither  does 
this  ground,  it  would  seem,  that  ihe  there  appear  to  be  a  very  valid  dislinc- 
declarations  of  deceased  corporators,  lion  as  to  the  principle  or  the  admissibil- 
would,  before  the  change  or  the  law,  ity  of  the  evidence,  between  the  case 
have  been  evidence  in  support  of  a  cus-  where  the  ancient  declaration  of  a  copy- 
torn  to  exclude  foreigners,  although  the  holder  is  used  against  a  modern  copy-- 
corporators  could  not  have  been  exam-  holder,  and  when  it  is  used  for  him.  Se9 
jned,  if  living.  PerLord  Lyndhurst,  in  Chapman  u.  Cowlan,  13  East,  10. 
Dacres  v.  Morgan,  1  Cr.  &  J.  593.     In 


254  Hearsay  Evidence.  [Cli,   13. 

rett,  (3)  certain  answers  of  conv cntionary  iewd^wis.  were  object- 
ed to,  as  not  being  admissible  against  tlio  treeholders  of  a  man- 
or to  whom  it  was  said  they  had  an  adverse  interest,  and  it 
was  contended,  tiiat  all  the  cases  in  Avliich  the  hearsay  of 
copyholders  had  been  received,  related  to  questions  between 
lord  and  copyholder,  and  copyholder  and  copyholder.  (4) 
The  answers,  however,  were  held  to  be  admissible  evidence. 
Deeiara-  ],astly,  it  is  a  (lualification  to  which  evidence  of  reputation 

tions  ol  tie-  ...  '■ 

ceased  per-  IS  subjcct,  that  it  caunot  bc  received  so  long  as  the  declarant 
'*""*•  is  alive.     This  is  in  conformity  with  the  rule  which  requires 

[  *2S5  J  the  *best  evidence  to  be  produced.     The  examination  of  this 

rule,  in  a  subsequent  chapter,  will  afford  further  illustrations 

of  the  present  subject.  (1) 


CHAPTER  XIV. 

HEARSAY  EVIDENCE   OF   ANCIENT  POSSESSION. 

Ancient  It  has  bccn  sccu,  that  hearsay  evidence,  in  matters  of  pri- 

ovfdeul^e'of  ^^^*^  interest,  not  affecting  any  public  or  general  interest,  is,  in 
possession,  general,  inadmissible,  especially  where  the  matters  do  not  in- 
volve any  prescriptive  right.  But  the  admissibility  of  ancient 
documents,  purporting  to  constitute  a  part  of  transactions 
themselves,  to  which  the  party  against  whom  the  evidence  is 
produced  is  not  privy,  as  acts  of  ownership,  or  of  the  exercise 
of  right,  stands  upon  a  different  principle.  On  the  one  hand, 
the  documents  in  question  consist  of  evidence  which  is  not 
proved  to  be  part  of  any  res  gestae,  because  the  only  proof  of 
the  transaction  is  the  documents  themselves  ;  and  they  do  not 
amount  to  complete  acts  in  themselves,  because  they  might 
have  been  fabricated,  or  might  never  have  been  acted  upon. 
Further,  the  effect  of  the  evidence  is  to  benefit  persons  con- 
nected in  interest  with  those  with  whom  it  originates,  and 
from  whose  custody  it  is  produced.  On  the  other  hand,  such 
is  often  the  only  attainable  evidence  of  those  ancient  acts  of 
possession  which  are  of  great  weight  in  the  investigation  of  ti- 
tles ;  and  they  naturally  accompany,  and,  indeed,  constitute, 
a  part  of  such  acts.  There  is  some  presumption  also  against 
the  fabrication  of  instruments,  where  they  refer  to  co-existing 
subjects,  by  which  their  truth  might  be  examined.  (2) 
f  *286  ]       *Hence  ancient  documents,  purporting  to  be  apart  of  trans- 

(3)  1  Cr.  M.  &  R.  927,  the  point  2S4,  n.  seems  to  require  some  limita- 
was  not  particularly  adverted  to  in  the  tion  in  this  respect.  The  Chief  Baron 
judgment  of  the  Court.  there  says,  that  it    is  not  necessary  that 

(4)  Roe  V.  Parker,  5  T.  R.  26.  the  witness  should  be  able  to  state  from 
Chapman  r.  Covvlan,  1.3  East,  10.  whom  he  heard  the  declarations. 

(I)  The  doctrine  of  C.  B.  Richards  in  (2)  See  per  I.ord  Kenyon,  in  Clark- 
Moseley  v.  Davies,  11  Pr.  1G2,  supra,     son  v.  VVoodhouse,  T.  R.  413,  n. 


Sect.  2.] 


Ancient  Posscssioii. 


actions,  and  not  a  mere  narrative  of  them,  arc,  under  certain 
qualifications,  which  will  be  noticed,  receivable  as  evidence 
that  those  transactions  really  occurred.  And,  in  this  sense, 
the  documents  may  be  called  hearsay  evidence  of  ancient 
possession.  Such  evidence  is  very  commonly  adduced  in 
practice  to  corroborate  modern  use  or  possession.  (1) 

Thus,  upon  a  question  as  to  the  right  of  a  lord  of  a  manor 
to  hold  certain  land  within  the  manor  free  from  common,  sev- 
eral counterparts  of  leases  found  among  the  muniments  of  the 
lord  of  the  manor,  and  from  which  it  appeared  that  the  land 
had  been  demised  by  the  lord  free  from  common,  were  held  to 
be  receivable  in  evidence.  (2)  In  an  action  of  trespass,  upon 
issue  joined  on  a  plea  of  justification  by  virtue  of  a  prescriptive 
right  of  fishery  appurtenant  to  a  manor,  old  licenses  on  the 
court  rolls,  and  leases  granted  by  the  lords  of  the  manor,  in 
consideration  of  certain  rents,  to  fish  in  the  locus  in  quo,  were 
held  to  be  receivable  evidence.  Mr.  J.  Heath,  in  this  case, 
observed,  that  he  could  not  distinguish  the  licenses  from  old 
leases,  which  were  always  received  in  evidence,  in  favour  of 
those  claiming  under  the  lessors.  (3)  And  rent  rolls,  where 
payments  have  been  made,  are  good  evidence.  (4) 

*lt  has  been  questioned,  however,  whether  ancient  leases  are 
proper  evidence  against  strangers,  of  the  boundary  of  the 
property  conveyed.     In  Clai'kson  v.    Woodhouse,  (1)    Lord 


Ancient 
documents 
evidence  of 
boundarv. 

[  *2sr  J 


(1)  In  White  1'.  Lisle,  4  Madd.  214, 
the  Vice  Chancellor  appears  to  have 
considered  the  admissibility  of  leases  as 
purely  a  question  of  the  admissibility  of 
evidence  of  reputation,  depending  on  the 
point  whether  the  right  in  dispute  was  a 
public  or  private  right.  But  this  view 
does  not  appear  consistent  with  the  ellect 
of  the  authorities. 

(2)  Clarkson  v.  Woodhouse,  5  T.  Pi. 
412,  n.  3  Dougl.  189.  The  Lord's 
right  as  effecting  the  copyholders, 
would,  it  is  conceived,  have  been  prov- 
able by  reputation.  Similar  leases  were 
treated  as  evidence  of  reputation  in 
Barnes  v.  Mawson,  1  Maule  and  Selw. 
78,  supra.  In  Leathes  v.  Newit,  4  Pr. 
3.55.  S  Pr.  .562,  numerous  leases  were 
read,  in  order  to  show  what  tithes  had 
been  demised  as  belonging  to  the  rector  ; 
and  see  as  to  the  recitals  in  leases  Fish- 
er V.  Graves,  3  Eag.  &,  Y.  tithe  cases 
1180. 

(3)  Rogers  v.  Allen,  1  Cainpb.  309. 
In  this  case,  though  the  claim  was  insti- 
tuted by  a  lord  of  the  manor,  and  the  li- 
censes were  found  on  the  court  rolls,  it 
does  not  appear  that  the  right  claimed 
affected  any  matter  of  general  interest, 
or  that  the  evidence  derived  any  weight 
from  being  used  against  copyholders  who 


might  be  bound  by  the  contents  of  the 
rolls.  In  Biddulph  v.  Ather,  2  VVils. 
23,  the  Lord  proved  his  prescriptive 
right  to  wreck  partly  by  evidence  of  old 
court  rolls. 

(4)  \\  oodworth  v.  Lord  Cobhani, 
Bunb.  ISO.  1  i]ag.  k  Y.  lithe  cases, 
802.  In  Nowburgh  v.  Newburgh,  12 
Vin.  Abr.  T.  b.  43,  it  was  held,  that  old 
rent  tolls  were  admissible  evidence  to 
prove  fee  farm  rents,  for  being  very 
ancient,  it  would  not  be  supposed  they 
were  made  with  a  view  to  serve  the 
present  purpose.  In  12  Vin.  Abr.  A.  b. 
(it),  it  is  said  a  rental  is  but  weaU  evi- 
dence, unless  payment  is  also  proved, 
and  not  suthcient  per  se,  by  Comyns, 
B.,  12  Vin.  Abr.  90,  pi.  14,  rentals 
without  money  received  and  paid  upon 
them  are  nothing.  By  Tindal,  C.  J., 
in  Lancum  v.  Loveil,  G  C.  &  P.  441, 
an  ancient  counterpart  of  feo'l'ment  pro- 
duced from  corporation  muniments  was 
rejected,  because,  no  rent  had  been  re- 
ceived in  respect  of  the  property. 

(1)  5  T.  R.  413,  n.  It  has  been 
seen,  however,  that  parochial  descrip- 
tions in  leases  are  evidence  upon  ques- 
tions of  public  right,  where  reputation  is 
admissible,  Plaxton  v.  Dare,  10  Barn.  & 
Cress.  17. 


256  Hearsay  Evidence.  [Ch.   14. 

Kcnyon  said,  that  the  case  before  him,  in  which  it  was  deter- 
mined that  old  leases  were  receivable  to  prove  the  fact  of  the 
lord  of  a  manor  granting  certain  lands  free  from  common,  dif- 
fered from  the  case  of  Lord  Pomfret  v.  Smith,  where  Lord 
Pomfret  offered  a  lease  by  himself  or  his  predecessor,  describ- 
ing the  premises  in  dispute  as  lying  within  the  limits  of  Lord 
Pomfret's  estate,  the  question  being  on  the  boundaries.  (2) 
But  on  reference  to  the  report  of  that  case,  it  would  seem  that 
no  part  of  the  lease,  upon  the  admissibility  of  which  the  prin- 
cipal question  arose,  applied  to  the  place  in  dispute,  but  only 
the  words  of  an  exception  contained  in  it ;  and,  therefore,  it 
was  contended  that  the  lease,  not  containing  a  demise  of  the 
lands  in  question,  was  not  evidence  of  an  act  of  ownership, 
but  only  shewed  that  the  lands  were  excepted  by  a  descrip- 
tion injurious  to  the  right  of  a  stranger,  against  whom  that  de- 
scription was  attempted  to  be  used.  It  would  seem  that  an 
ancient  lease   was,   under  the  qualifications  to  be  mention- 

[  *288  ]  ed,  evidence  of  an  act  of  ownership  *over  every  parcel  of  pro- 
perty contained  within  the  description  of  the  lease  ;  though, 
from  the  nature  of  documents  of  this  description,  the  evidence 
which  such  a  lease  afforded  as  to  boundary  might  be  entitled 
to  less  weight  than  the  evidence  to  be  derived  from  it  upon 
other  points  ;  as,  for  example,  that  the  land  was  not  subject 
to  a  right  of  common. 

Maps.  A  map  annexed  to  a  deed,  seems  to  stand  on  the  same  foot- 

ing as  a  description  contained  in  the  deed  itself,  and  to  be  ad- 
missible in  evidence,  where  it  is  part  of  the  act  by  which  prop- 
erty is  to  be  conveyed.  (1) 

But  where  a  map  or  survey  is  not  connected  with  any  act 
of  ownership,  it  would  appear  to  be  inadmissible  evidence  to 
prove  the  parcels  of  an  estate  ;  at  least  so  far  as  respects  the 
principle  of  evidence  under  consideration.  (2)  («) 

(2)  The   case    of    Lord   Pomfret   v.  that  the  presumptior}  ought  to  have  been 

Btnitli,  is  reported    in  6  Bro.  P.  0.  440.  against    the    supposition    of  a    fictitious 

Hut  the  only  jadgment  there  reported    is  description  being    inserted  of  a  co-e.xist- 

an  award  of  a  trial  at  bar  ;  the    order,  ing  subject,    which,  at  tiie  time,    would 

however,    perhaps     implied    liiat    their  speak  for  itself 

Lordships    were    dissatisfied     with    the  ri )  Gilb.  Ev.  3d.  edit.  78,  cites  Yates 

leases    having    been    received     upon    a  v.  Harris,  Ilil.  Ass.  1702,  where  an  old 

former  trial.     The  lease   adverted  to    in  map  of  lands  was  allowed   in    evidence 

the  text,  was  dated,  A.  D.  1742.     And  which  came  along  with  the  writings,  and 

the    trial    took  place  in    1770,    the    de-  agreed  with    the    boundaries  in    an  an- 

scriplion  being  contained  in  an  exception  cient  purchase.     See  also  1    Str.  95,  n., 

only,  proof  of  possession  was  out  of  the  last  ed.     4   Nev.    &   >L    81.     1     Lord 

question.     In  Prescot  v.  Philips,  briefly  llaym.    734.     The    case    as    stated    in 

noticed  in  2   Evans's    Pothier,  292,    tlie  (lilbert    is  involved  in   considerable  ob- 

Court  of  King's    Bench  appear  to   have  scurity-     See  Doe  v.    Laken,  7  C.  &  P. 

rejected  evidence  of  the    description    of  4S1.      vVakeman    v.  West,  7   C.  &  P. 

lands  contained  in  an  old   deed.     Sir  D.  479, 
Evans  argued,    apparently  with    reason,         (2)  Jlnon.  1  Str.  95.  Bridgman  v.  Jen- 

(a)  The  declarations  of  the  surveyor  who  fixed  the  boundary  have  been  consid- 
ered  to  be  proper,  if  made  at  the  imie  the  survey  was  made.     6   Pet.  R.   469. 


Ch.   14.]  Ancient  Possession.  257 

Evidence  of  the  nature  under  consideration,  can  only  be  re-  ^^°^^ "'". , 

T  r  T  1         r  ^  acting  With 

ceived  subject  to  several  quahncations.     In  the  iirst  place,  respect  to 
some  acting  with  reference  to  the  documents,   is  required  to  ||jg„'|°'^"" 
be  shewn,  if  the  nature  of  the  case  admits  of  it.     In  the  case 
of  Clarkson  v.    Woodhouse,  (3)    the  trial  took  place  A.  D. 
1793,  and  the  three    leases,  which  were  produced,  were  re- 
spectively of  the  dates  A.  D.  1670,  1702,  1730.    As  to  the  two 
oldest  of  them,  the  Court  ruled  that  their  antiquity  rendered 
it  unnecessary  *because  it  was  not  likely  to  be  practicable  to  [  *289  ] 
prove  possession  under  them.     The  most  recent  lease  was  re- 
jected at  the  trial.     In  Rogers  v.  Alle7i,  (1)  leases  were  pro- 
duced, which  bore  date  from  the  year  1661,  downwards  to 
the  end  of  the  seventeenth  century,  and  the  cause  was  tried 
A.  D.   1808.       Heath,  J.,  ruled  that  it  was  not  necessary  to 
prove  payment  under  the  licenses,  as  they  were  of  such  an  •     ' 

ancient  date,  it  could  not  reasonably  be  supposed  that  evi- 
dence of  such  jjayments  was  still  preserved.  (2) 

nings,  1  Lord  Raym.  734.  B.  N.  P.  283.  distinction   between   evidence  of  enjoy- 

Pollard    V.  Scott,    Peake,    18,   by  Lord  ment  under  leases  by  the  lessees,  and  ev- 

Kenyon.     See  Wakeman  v.  West,  7  C.  idence  of  payment  of  rent.      This  dis- 

&  P.  479.     Doe    v.    Laken,   7  C.  &  P.  tinction    is   sometimes    very    important, 

481.     Doe  t).    Seaton,    I  N.  &  M.  81.  where  subsequent  inquiries  are  made  re- 

Dennison  v.  Eisley,    2  Eag.  &,  Y.,  tithe  specting  tlie  parcels  of  the  lease.     Thus, 

cases.,  1396,  n.  evidence  derived  from  a  where  leases  of  rectories  include  tithes 

map  rejected,    12  Vin.  Abr.  90,  pi.  12.  claimed  by  the  vicar,  it  seems   to    make 

Survey  books  of  a  manor,  which  are  an-  an  important  difference,  whether  the  les- 

cient,   unless   signed    by  the  tenants,  or  see  has  enjoyed  the  tithes  claimed  by  the 

unless  they  appear  to  be  made  at  a  Court  vicar,  or  whether  he  has  only  paid  rent 

of  Survey,  are  only    private   memorials,  generally  on  his  lease.     For  it  would  be 

Maps  are  sometimes  admissible  as  public  the    interest    of  the  lessee,  as  well  as  of 

documentary  evidence,    or  in  the  nature  the  lessor  to  have  the   parcels   stated    as 

of  admissions  by  parties,  who  are  privies  amply  as  possible;  and  where  the  rights 

to  the  makers,  or    upon    the    ground    of  are  often  so  intermingled  as  those  of  rec- 

their  relating  to  matters  of  public  interest,  tor  and  vicar,   the   leases  of  the  rectory 

(3)  3  Doug.   5  T.  R.  413,  n.  supra,  may  often,  in  general  terms,  include  vi- 

p.  287.  carial  tithes,    without  any  imputation  of 

(1)  1  Campb.   311.  fraud,    especially  where  common  forms 

(2)  There  appears  to  be   a  material  and  precedents  are  often  followed,  as  in 

They  are,  however,  not  admissible  to  contradict  his  ofEcial  return  even  after  his 
death. 

Where  a  deputy  surveyor  had  made  a  survey  for  the  proprietors,  the  declarations 
of  the  surveyor  were  rejected  although  he  had  deceased,  and  his  otiicial  papers  were 
destroyed  by  fire;  and  although  the  warrant  of  acceptance  recited  that  the  survey 
had  been  made  by  such  proprietors.  3  Binn.  175.  The  court  also  rejected  the  de- 
clarations of  the  surveyor  general  as  to  the  return  of  a  survey.     2  Yeates  R.  87. 

The  authority  under  which  surveys  are  made  is  generally  to  be  found  in  the  books 
of  the  land  office,  or  at  least  some  entry  thereof.  Where  diligent  search  has  been 
made,  and  no  official  copy  of  such  paper  or  entry  can  be  procured,  after  proving 
that  such  paper  did  once  exist,  an  unofficial  copy  will  be  received  in  evidence  ;  and 
where  there  is  no  copy,  the  contents  of  the  warrant,  order,  or  written  direction 
may  be  shewn  by  parol  testimony.     I'er  Yeates,  J.,  G  Binn.  180. 

Where  the  given  distances  are  exceeded  in  a  grant  of  land  by  the  Common- 
wealth, which  is  described  by  courses  and  distances,  without  referring  to  monu- 
ments, evidence  may  be  received  of  long  occupation  under  it  to  prove  the  bounda- 
ries.    9  Pick.  520,  and  cases  cited. 

33 


258 


Hearsay  Evidence. 


[Ch.  14. 


But  where  unexceptionable  evidence,  of  enjoyment  rcforri- 
ble  to  the  document,  may  reasonably  be  expected  to  be  found; 
it  is  required  to  be  shewn.  (3)  And  proof  of  acting  with  re- 
spect to  the  documents,  which  are  produced  as  evidence  of 
acts  of  ownership,  is  always  scrupulously  required,  even  in 
[  *290  ]  cases  where  traditionary  ^evidence  is  receivable,  if  the  docu- 
ments purport  to  have  been  made  post  litem  inotam.  Thus, 
upon  a  question  concerning  the  right  of  the  corporation  of 
Cambridge  to  receive  toll,  an  award,  whereby  the  freemen  of 
Northampton  Avere  discharged  of  toll  at  Cambridge,  in  con- 
sideration of  an  annual  payment  by  the  corporation  of  North- 
ampton to  the  corporation  of  Cambridge,  was  considered  as 
inadmissible  in  evidence,  on  the  ground  that  payment  of  the 
composition  had  not  been  proved.  (1) 

But  where  it  cannot  be  expected,  that  proof  of  acting  with 
reference  to  the  documents  should  be  afforded,  it  is  required 
that  some  acts  in  modern  times  with  reference  to  similar  doc- 
uments, should  be  proved,  or  that  modern  possession  or  user 
should  be  corroborative  of  the  ancient  documents.  In  the 
case  of  Clarkson  y.  Woodhouse  (2)  before  mentioned,  other 
evidence  of  title  was  given  besides  the  leases.  And  in  Rog~ 
crs  V.  Allc?i,  above  stated,  (3)  Heath,  J.,  observed,  that  to 
give  any  weight  to  the  licenses  produced  in  that  case,  it  must 
be  shown  that,  in  later  times,  payments  had  been  made  under 


Proof  of 
modern  en 
jo^ment. 


leases  of  crown  rectories.  In  tithe  suits, 
however,  ancient  leases  of  rectories  have 
frequently  been  admitted  as  evidence  of 
the  parcels,  merely  upon  proof,  of  rent 
being  received,  appearing  by  the  minis- 
ter's accounts.  Collins  v.  Gresley,  by 
Park,  J.,  Derby  Sum.  Ass.  1833.  Per 
Lyndhurst,  C.  B.,  on  motion  for  a  new 
trial. 

(3)  In  Alcock  v.  Cook,  tried  before 
Tinda!,  C.  J.,  at  Guildhall,  it  was  sought 
to  prove  a  particular  district  parcel  of  a 
certain  manor,  and  evidence  was  given 
fram  the  rates  of  certain  persons  within 
that  district  having  been  tined  and  pre- 
sented. But  the  Chief  Justice  rejected 
the  evidence,  because  it  Was  not  proved 
by  the  steward's  entry,  that  the  fines  had 
been  paid.  In  Plaxton  v.  Dare,  10 
Barn.  &  Cress.  19,  where,  in  order  to 
prove  parochiality,  certain  rates  were 
given  in  evidence.  Lord  Tenterden  ob- 
served, "  assuming  that  it  was  necessa- 
ry to  prove  payment  of  the  rates,  there 
was  evidence  of  such  payment."  In  the 
case  of  private  leases,  evidence  of  the 
receipt  of  rent,  shewn  by  the  entries  of 
the  lessor,  appears  to  be  excluded  by  the 
case  of  Ootram  v.  Morewood,  5  T.  R. 
121.  And  it  would  seem,  that  entries 
of  payments  by  a  corporation  in  their 


own  books,  are  equally  excluded,  Mar- 
riage V.  Lawrence,  3  B.  &  A.  142;  en- 
tries that  certain  persons  had  been  fined, 
and  had  paid  their  fines.  On  the  first 
trial  of  the  Cambridge  toll  case,  an  an- 
cient schedule,  produced  from  among 
the  muniments  of  the  Corporation  of 
Cambridge,  was  held  to  be  inadmissible, 
because  it  was  not  properly  connected 
w'nh  the  actual  collection  of  the  tolls. 
This  defect  was  supplied  upon  the  second 
trial.     Brett  v.  Beales,  1  M.  &  M.  419. 

(1)  Brett  V.  Beales,  1  M.  &  M.  418. 
On  the  production  of  the  corporation 
books,  it  appeared  that  the  treasurer  of 
the  corporation  had  not  charged  himself 
with  the  receipt  of  the  money,  but  had 
only  returned  it  in  arrear.  On  a  previous 
trial  of  the  same  case,  an  award  was  re- 
jected, because  it  had  not  been  acted  on. 
1  M.  &  M.  p.  416. 

(2)  Vide  supra,  p.  288. 

(3)  Vide  supra,  p.  289,  payment  of 
rent  under  leases  for  the  last  forty  years 
was  proved  in  this  case.  And  see  as  to 
the  point  that  entries  in  ancient  corpora- 
tion books  are  not  generally  evidence 
against  strangers,  Atty.  Gen.  v.  Corpo- 
ration of  Warwick,  4  Russ.  222.  Lan- 
cum  V.  Lovell,  6  C.  &  P.  441.  Mar- 
riage V.  Lawrence,  S  B.  &  A.  142.  Hill 


Ch.   14.]  Ancient  Possession.  259 

licenses  of  the  same  kind,  or  that  the  lords  of  the  manor  had 
exercised  other  acts  of  ownership  over  the  fishery,  which  had 
been  acquiesced  in. 

Another  quahfication,  to  which  the  admissibility  of  this 
species  of  e\ridence  is  subject,  relates  to  the  custody  of  the 
documents.  But  this  will  be  more  properly  considered  in  the 
part  of  the  Work,  which  relates  to  the  proof  of  written  in- 
struments. (4) 


*CHAPTER  XV.  [  *291  j 

OF    DYING    DECLARATIONS. 

The  rule  which  excludes  hearsay  evidence  has  been  relax- 
ed, in  certain  cases,  where  the  information  has  been  given  by 
a  deceased  person  under  the  immediate  apprehension  of  death. 
It  seems  formerly  to  have  been  considered,  that  such  evidence 
was  admissible  on  the  ground,  that  the  circumstances,  under 
which  the  information  was  imparted,  were  a  guarantee  of  its 
truth,  sufficient  to  make  it  safe  for  juries  to  derive  their  con- 
clusions from  such  a  source.  It  is  obvious  that  this  principle 
would  apply,  though  perhaps  with  unequal  force,  whatever 
were  the  subject  matter  of  the  declaration ;  but  according  to 
later  authorities,  it  is  now  established,  that  dying  declarations 
are  receivable  only  upon  some  particular  subjects  of  inquiry. 
The  admissibility  therefore,  of  the  evidence  depends,  in  some 
measure,  on  grounds  similar  to  those  which  have  been  already 
considered ;  and,  in  some  degree,  on  the  peculiar  solemnity 
attending  the  communications. 

In  a  recent  case  in  the  Court  of  Exchequer,  which  has  been  in  civil  ca- 
before  noticed,  (1)  and  in  which   it  was  held  that  evidence  ^^^•^'^i 
could  not  be  given  of  the  declarations  of  a  subscribing  witness 
to  a  deed,  tending  to  show  that  he  had  forged  or  fraudulently 

V.  Manchester  W.  W.  5  B.  &  Ad.  S75.  (4)  Post,  part  2.  Clarkson  v.  Wood- 

And  see  as  to  persons  manufacturing  ev-  house,  5  T.  R.  412,  n.    3    Doug.    189. 

idence  in  their  own  favor,  II.  r.  Deben-  (1)    Vide  supra,  p.  22.     Stobart  v. 

ham,  2  B.  &  Ad.  186.     Glynn  v.  Bank  Dryden,  1  M.  &  Wei.  615. 
of  England,  2  Ves.  43. 

(a)  In  Wilson  v.  Boerem,  15  J.  R.  286,  it  was  held,  that  the  dying  declara- 
rations  of  one  competent  to  testify  cannot  be  admitted  in  a  civil  action.  Mr.  J. 
Thompson  in  speaking  for  the  Court  says  : — "  That  the  question  is  still  open  with 
us,  appears  from  the  case  of  .lackson  v.  Vredenbergh,  1  J.  R.  163,  where  it  is 
said,  that  it  will  be  unnecessary  to  determine  whether,  under  any  and  what  circum- 
stances, the  declarations  of  a  competent  witness,  in  articulo  mortis,  can  be  intro- 
duced as  legal  evidence  in  a  civil  cause."  After  citing  2  J.  R.  35,  he  adds — "  la 
Capron  ?■.  .Austin,  7  J.  R.  96,  it  is  said,  that  the  law  requires  the  sanctity  of  an 
oath  to  all  parol  testimony.  It  never  gives  credit  to  the  bare  assertion  of  any  one, 
however  high  his  rank,  or  pure  his  morals  ;  and  it  is  fairly  to  be  inferred  from  this 
case,  tliat  the  court  meant  to  say,  that  declarations  in  extremis  were  inadmissiblo 
evideace,  except  in  the  simple  case  of  homicide." 


260  Hearsay  Evidence.  [Ch.   15. 

altered  the  deed,  the  authorities  for  admitting  dying  declara- 
tions were  much  considered.  These  authorities  are  two  only 
in  number,  and  although  they  had  been  spoken  of  by  Judges 
occasionally  with  approbation,  they  do  not  appear  to  be  sup- 
ported by  the  deliberate  judgment  of  any  Court.  Upon  a  re- 
view of  the  circumstances  and  grounds  of  those  decisions,  as 
pointed  out  in  the  judgment  of  the  Court  of  Exchequer,  and 

f  *292  1  having  regard  to  the  manner  in  which  their  *authority  is  im- 
pugned by  that  judgment,  it  may  be  considered  at  least  very 
doubtful  whether  dying  declarations  would  at  the  present  day 
be  receivable  in  any  civil  case. 

Upon  what       Previously  to  this  case,  it  had  been  the  leaning  of  the  Courts 

«u  jecis.  -^  j^^g  times,  to  pay  regard  to  the  subject  matter  of  dying 
jv  cases,  declarations,  and  to  conline  the  admissibility  of  dying  declar- 
ations to  the  narrowest  principles,  upon  which  the  two  author- 
ities, referred  to,  could  be  rested.  In  one  of  these  cases  the 
declaration  of  a  subscribing  witness  to  a  bond,  who  in  his  dy- 
ing moments  begged  pardon  of  Heaven  for  having  been  con- 
cerned in  forging  the  bond,  was  admitted  by  Mr.  Justice 
Heath  (1)  as  evidence  of  the  forgery,  on  the  authority  of 
Wright  on  the  demise  of  Clymer  v.  Littler,  (2)  where  simi- 
lar evidence  of  a  dying  confession  by  a  subscribing  witness  to 
a  will  had  been  received  by  Chief  Justice  Willes,  and  after- 
wards approved  of  by  the  Court  of  King's  Bench.  But  in  an 
action  of  ejectment,  it  was  determined  that  the  dying  decla- 
rations of  a  person  as  to  the  relationship  between  the  lessor  of 
the  plaintiff  and  the  person  last  seized  of  the  premises  in 
question,  (the  deceased  not  being  a  relation  of  the  parties,) 
could  not  be  received  in  evidence.  (3) 

[  *293  1      *^I^'-  Ji^stice  Heath  is  said  to  have  admitted  the  evidence  in 

(1)  Cited  by  Lord  Ellenborough,  in  John  Brown  v.  the  Widow  of 
Aveson  v.  Lord  Kinnaird,  6  East,  195.  James  Lord  Say. 

(2)  3  Burr.  1244,  1  W.  Black,  346,  Calendars  of  Proceedings  in  Chancery, 
S.  C,      See   4  Barn.  &  Aid.  54.     Tiie  vol.   1,  p.    47, 

state  of  mind  of  tiie  deceased  as  to    his  Bill   to   set   aside  a  release   of  lands 

hopes  of  recovery  was  not  much  inquir-  made  by  duress  of  imprisonment  to 

ed  into;  the  declaration  was  made  three  the  Lord  Say,  who,  just  before  he 

weeks  before  his  death.  was   put  to   death    by  Jack  Cade, 

(3)  Doe  d.  Sutton  v.  Ridgway,  4  confessed  the  wrong  he  had  done 
Barn.  &  Aid.  53.  In  tlie  reign  of  Hen-  the  plaintiff,  and  desired  his  con- 
ry  VL  the  dying  declaration  of  Lord  Saj  fessor  to  urge  his  wife  to  make  res- 
before  being  put  to  death  by  Jack  Cade,  titulion. 

that  he  had  obtained  a  release  of  certain  And    aftward    the    same    lord   Say 

lands  by  duress,   and  stating  his   desire  knowyng  hymself  to   be   putte   to 

to  his  confessor  that  he   should  urge  his  deth  by  that   horrible  and    crewell 

wife  to  make  restitution   to   the  party  tretour  Jakke  Cade  opunly  knowl- 

■vvronged,    was    afterwards    made    the  echid  among  other  extorcions  this 

foundation  of  a  suit  in  Chancery  against  matter :  requiring  and  charchying  a 

the  widow   for  the   purpose  of  setting  chapeleyn   called   Thomas  Oldhall 

aside  the  release.     The  bill  is  printed  in  thenne  beyng  his  confessour  that  he 

the  Calendar  of  Chancery  Proceedings,  shuld  do  his  feithfull   labour  to  his 

published  by  the  Record  Conamission,  wife  of  the  said  lord  Say  that  your 

vol,  L  p.  47.  said  besecher  spaly  myght  have  re- 


Ch.  15.]  Dying  Declarations.  261 

the  first  mentioned  of  the  above  cases  on  the  ground  that  "  if 
the  subscribing  witness  could  have  been  produced  on  the  trial 
to  prove  his  hand-writing  to  the  bond,  he  might  have  been 
cross-examined  as  to  the  fact  ;  so  his  declaration  as  to  the 
fact  might  also  be  proved  in  contradiction  to  a  presumption  of 
the  due  execution  of  the  bond  from  the  proof  of  his  hand- 
writing as  a  subscribing  witness."  (1) 

And  Lord  Mansfield,  in  Clijmer  v.  Littler,  observed,  that 
the  fact  came  out  of  the  defendants'  own  examination,  to  dis- 
credit their  own  evidence,  arising  from  the  proof  of  the  de- 
ceased's handwriting,  and  that  they  made  no  objection  to  it 
at  the  trial.  But  that  even  though  it  had  been  upon  the  ex- 
amination by  the  plaintiff  (especially  as  the  instrument  was 
all  written  and  witnessed  by  him,  and  it  gave  the  premises  in 
question  to  his  wife ),  as  the  account  was  a  confession  of  great 
iniquity,  and  as  he  could  be  under  no  temptation  to  say  it, 
but  to  do  justice  and  ease  his  conscience,  the  evidence  was 
proper  to  he  left  to  the  jury.  Abbott,  C.  J.;  in  commenting 
upon  these  two  decisions,  observed,  that  the  declarations 
amounted  to  a  confession  by  the  party  himself  of  a  very  hein- 
ous offence  which  he  had  committed,  and  drew  a  distinction 
between  it  and  the  case  before  him,  {Rex  v.  Mead)  when  the 
dying  declaration  of  the  prosecutor  was  for  the  purpose,  not 
of  accusing,  but  of  clearing  himself.  (2)  And  Mr.  Justice 
Bayley  in  commenting  *npon  the  same  decisions,  observed,  [  *294  J 
"  that  the  admissibility  of  the  evidence  in  those  cases  seemed 
to  be  founded  on  the  circumstance,  that  the  deceased  must 
have  been  called  as  a  witness  if  he  had  been  alive,  and  it 
would  then  have  been  competent  to  prove,  by  cross-examina- 
tion, his  declarations  ;  and  that  the  party  ought  not,  by  the 
death  of  the  witness,  to  be  deprived  of  obtaining  the  advan- 
tage of  such  evidence."  (1) 

stitucion  and    reformacion   of  the  (1)  6  East,  195. 

said  wrongis  and  oppressions  in  this  (2)  2  Barn.&  Cress.  607.  In  a  criminal 

matter  to  hym  done.  case,   where  the  declaration    related  to 

the  declarant's  own  death,  it  has  been 
There  is  another  instance  in  the  same  received,  though  its  tendency  was  to  ex- 
reign  of  a  dying  declaration  forming  the  culpaie  the  deceased  from  a  crime, 
ground  of  an  application  to  Chancery  for  Tinkler's  case,  1  East's  P.  C.  356.  For- 
the  restitution  of  plale,  ibid,  p.  ,50.  It  merly  the  dying  declaration  of  a  pauper 
is  worthy  of  remark,  that  by  the  Statu-  respecting  his  settlement  (though  a  ques- 
tum  Wallise,  12  Ed.  1,  it  is  expressed  to  tion  involving  law  as  well  as  fact)  waa 
be  part  of  the  duty  of  the  coroner  to  held  admissible  by  the  King's  IJench, 
come  to  see  not  only  one  slain  by  felony,  but  at  that  period  general  declarations 
or  by  accident,  but  also  a  person  severe-  as  to  this  fact  seem  to  have  been  allow- 
ly  wounded,  whose  life  was  despaired  of,  ed.  Ilex  ».  Bury,  Cald.  486.  Appo- 
and  to  cause  a  jury  to  be  summoned  on  tun  v.  Danswell,  2  liott.  80.  The  rule 
both  those  occasions.  Mr.  Barrington  is  now  established  that  such  declarations 
observes,  that  the  attendance  of  the  jury  are  inadmissible.  Rex  v.  Ferry  Frystone, 
in  the  latter  case  was  to  ■prevent  the  dy-  2  East,  54.  Rex  r.  Chadderton,  ib,  27. 
jng  words  of  the  wounded  person  from  Rex  v.  Abergwilly,  ib.  63, 
being  evidence.  Observations  on  tlic  (1)  In  Doo  «.  Ridgway,  1  Ram.  & 
Statutes,  p.  169.  Aid.  55,  and  see  per   Bayley,   B.,  in 


262  Hearsay  Evidence.  [Chap.   \5, 

!ib>cS"''  ^^  ^^^^  years,  the  Courts  have  shown  a  disposition  to  re- 
Criininai  ^^rict  the  admissibiHty  of  dying  declarations  even  in  criminal 
cases.  cases  ;  and  a  principle  appears  to  have  been  gradually  estab- 
lished, which  is  apparently  founded  on  the  necessity  of  resort- 
ing to  this  species  of  evidence,  where  the  injury  inflicted  on 
a  party  occasions  his  death  ;  it  being  commonly  found,  that  in 
such  cases  there  is  little  other  available  evidence  to  be  discov- 
ered. A  rule  has  been  accordingly  laid  down,  that  dying  de- 
clarations are  admissible  only  where  the  death  of  the  person, 
who  made  the  declaration,  is  the  subject  of  the  charge,  and 
where  the  circumstances  of  the  death  are  the  subject  of  the 
dying  declaration.  (2)  It  may  be  observed  that,  independent- 
ly of  the  solemnity  of  the  occasion  upon  which  the  communi- 
cation is  made,  the  subject,  in  such  cases,  is  one  upon  which 
the  declarant  has  peculiar  means  of  knowledge,  and  the  de- 
claration in  many  instances  is  similar  in  it's  nature  to  those 
verbal  statements  which  are  admissible  as  original  evi- 
dence. (3) 
[  *295  J  *Where  a  prosecution  was  for  administering  drugs  to  a  wo- 
man pregnant  but  not  quick  with  child,  with  intent  to  pro- 
cure abortion,  her  dying  declarations  were  held  inadmissi- 
ble. (1)  So  in  trials  for  robbery  the  dying  declarations  of  the 
party  robbed  have  been  rejected.  (2)  And  in  an  indictment 
for  perjury,  it  was  held  that  the  dying  declarations  of  the  pros- 
ecutor could  not  be  used,  in  showing  cause  against  a  motion 
for  a  new  trial,  nor  could  they  have  been  received  in  evidence 

b!      ^^  ^^^®  ^''^^^"  (^^ 
to' prisoner.      It  would  Seem  that  the  declaration  of  a  deceased,  in  favour 

of  a  party  charged  with  his  death,  are  admissible  equally  as 

where  they  operate  against  him.  (4) 

But  it  would  appear,  from  the  authorities,  that  it  was  not 

so  much  the  subject  of  the  declaration  as  the  peculiar  solem- 

Chambers   v.   Bernasconi,    1  Cr.    &  J.  er,  has  only  been  settled   of  late   years. 

457.  In  Drummond's   case,    1    Leach,    378, 

(2)  By  Lord  Tenterden,  in  Rex  v.  the  prisoner  was  charged  with  robbery. 
Mead,  2  Barn.  &  Cress.  607.  If  a  par-  and  it  does  not  seem  to  have  been 
ty  accused  himself  by  his  dying  declara-  thought  that  the  declaration  was  inad- 
tion  that  declaration  would,  perhaps,  be  missible  on  tiiis  account,  as  it  formed  no 
evidence  in  criminal  or  even  civil  pro-  part  of  the  ground  of  rejection;  the  de- 
ceedings.  See  per  Lord  Tenterden,  ib.  claration,  however,  of  the  convict,  went 
Bayley,  J.,  remarks,  that  in  Tinkler's  to  accuse  himself,  vide  supra,  p.  294, 
case,  infra,  p.  296,  the  dying  declara-  n.  2.  In  Scotland,  on  a  charge  of  abduc- 
tions were  those  of  the  party  who  had  tion,  the  dying  declaration  of  the  woman 
received  poison.     4  Barn  &  Aid.  55.  as  to  the  otrender,   was   admitted    both 

(3)  See  R.  J).  Foster,  6  C.  &  P.  325.  on  his  trial  and   afterwards  on   that   of 

(1)  By  Bayley,  J.,  Rex  v.  Hutchin-  his  accomplice.  Hume's  Commenta- 
son,  2  Barn  &  Cress.  608,  n.  (a.)  ries,  vol.  2,    p.  228,    et   seq.    extracts 

(2)  By  Bayley  J.,  on  the  Northern  from  which  are  given  in  16  Howell's 
Spring  Circuit,    1822.     By  Best,  C.  J.,  St.  Tr.  27,  n. 

on  the   Midland   Spring   Circuit,  1822,         (3)  Rex  v.  Mead,    2    Barn  &  Cress. 

and   by  Bolland    B.,  Rex   v.   Lloyd,  4     605. 

Carr.  &  Payne,  333.     The  rule  howev-         (4)  Rex  v.  Scaife,  1  M.  &  Ro.551. 


CIi.   15.]  Dying  Declarations.  263 

nity  under  which  it  was  delivered,  that,  originally  at  least, 
occasioned  the  relaxation  of  the  rule  which  excludes  hearsay. 
Such  declarations,  says  Lord  Chief  Justice  Evre,  are  made  in  Absenre  of 
extremity,  when  the  party  is  at  the  point  of  death,  and  when 
every  hope  of  this  world  is  gone,  when  every  motive  to  false- 
hood is  silenced,  and  the  mind  is  induced  hy  the  most  power- 
ful considerations  to  speak  the  truth  ;  a  situation  so  solemn,  J^fi^"fj'",f 
and  so  awful,  lie  observed,  is  considered  by  the  law  as  creat- 
ing an  obligation  equal  to  that  which  is  imposed  by  a  positive 
oath  administered  in  a  Court  of  Justice.  (5) 

^Although   it  appear  that  the  deceased  contemplated  the  J^'ea  of  fu- 
prospect  of  inevitable  and  almost  immediate  death,    yet  if  it  r  *296  l 
also  appear  that  he  had  not  an  idea  of  a  future  state,  his  de- 
clarations will  be  inadmissible  ;    for  a  principal  ground  of  the 
admissibility  of  such  evidence  is  the  supposed  deep  impression 
of  having  shortly  to  render  up  an  account  to  his  Maker.  (1) 
Accordingly  the  dying  declaration  of  a  child,  aged  four  years, 
was  rejected,  because  it  was  considered  that  however  preco- 
cious her  mind,  she  could  not  possibly  have  any  idea  of  a  fu- 
ture state.  (2)     Upon  the  same  principle,  it  would  seem  to  be  sense  o^"fu. 
allowable  to  show,  that  the  deceased  was  not  ot   a  character  lure  stale, 
likely  to  be  impressed  by  a  religious  sense  of  approaching 
death. 

Upon  the  ground  that  dying  declarations  are  said  to  be  re-  Equivalent 
ceivable,  because  from  the  circumstances  under   which  they  lesiiniolfv. 
are  delivered  they  are  equivalent  to  the  evidence  of  a  living  Auaimed 
witness  upon  oath,  the  dying  declarations  of  an  attainted  con-     "^"^ " 
vict  have  been  rejected,  as  he  could  not  have  been  admitted 
to  give  evidence,  if  he  had  been  living.  (3) 

But  as  the  evidence  of  an  accomplice  is  admissible  against  Accom- 
a  person  indicted  for  the  crime  in  which  he  has  participated,  ^  "^*^' 
the  dying  declaration  of  a  person,  who  may  have  been  farti- 
ceps  criminis  in  an  act  which  occasioned  her  own  death,  were 
received  in  evidence,  upon  an  indictment  for  the  murder  of 
herself  against  a  person  as  principal,  and  also  as  accessary  be- 
fore the  fact.  (4) 

(5)  In  Woodcock's  case,  1  Leacli,  Vide  infra,  chap.  iv.  Disqualijica- 
502,  and  the  Court  in  Drummond's  case,  Hon  from  Infamy.  And  yet  a  par- 
1  Leach,  337,  say,  that  "  the  principle  don  will  render  the  convict  a  competent 
on  which  this  species  of  evidence  is  re-  witness,  even  in  those  cases  where  con- 
ceived is,  that  the  mind,  impressed  with  viction  disqualities  a  man  from  being  a 
the  awful  idea  of  approaching   dissolu-  witness. 

tion,  acts  under  a  sanction  equally  pow-  (4)  Tinkler's  case,    1    East's   P.   C. 

erful  with  that  which  it  is   presumed   to  354.  The  death  of  the  deceased  was  oc- 

feel  by  a   solemn   appeal  to   God  upon  casioned    by    instruments    inserted  into 

oath."  her  womb  in  order  to  procure    abortion. 

(1)  Per  Park,  J.,  in  Rex  v.  Pike,  3  There  was  a  difference  of  opinion  among 
Carr.  &  P.   598.  the  judges  as  to  the   point   whether   the 

(2)  Rex  V.  Pike,  3  Carr.  &  P.  598,  declarations  required  confirmation  ;  as 
by  Park,  J.,  and  Parke,  J.  to  which,  note  infra,   chap.    iv.    Evi- 

(3)  Drummond's  case,  I  Leach,  337.  dence  of  Accomplices.  Nares,  J.,  at  the 


264  Hearsay  Evidence.  [Ch.  15. 

[  *297  ]  *Tlie  preliminary  inquiry,  to  be  made  before  dying  decla- 
rations can  be  received  in  evidence,  is  ''  whether  the  deceased 
apprehended,  that  he  was  in  such  a  state  of  mortality  as  would 
inevitably  oblige  him  soon  to  answer  before  his  Maker  for  the 

Apparciit     truth  or  falsehood  of  his  assertions."  (1)     In  arrivino;  atacon- 

couditiori  of  .  ,    •      •  •  ,  1       •       -1  -1  i>       1 

deceased,  clusiou  upou  this  luquny  as  to  the  admissibility  ot  tlie  pro- 
])osed  evidence,  it  is  not  necessary  that  the  deceased  should 
have  explained  by  any  expressions,  whether  he  thought  him- 
self likely  to  live  or  die.  In  Woodcock^s  case,  it  was  deemed 
sufficient  to  give  credit  to  the  declarations,  that  the  deceased 
had  been  mortally  wounded,  and  was  in  a  condition  which 
rendered  almost  immediate  death  inevitable  ;  and  that  she  was 
thought  by  every  person  about  her  to  be  dying.  For  it  was 
considered  a  proper  inference  from  such  circumstances,  that 
she  must  have  felt  the  hand  of  death,  and  must  have  consider- 
ed herself  as  a  dying  woman.  (2)  The  same  doctrine  was 
held  in  Johii's  case,  (3)  the  Court  being  of  opinion,  that  if  it 
was  reasonably  to  be  inferred  from  the  wound  or  state  of  ill- 
ness of  a  dying  person,  that  he  was  sensible  of  his  danger,  his 
declaration  would  be  good  evidence.  And  in  Rex  v.  Bon- 
ner^ (4)  Patteson,  J.,  says,  that  it  is  not  necessary  to  prove  ex- 
pressions of  apprehension  of  immediate  danger. 

[  *29S  ]  *In  the  case  of  Rex  v.  Spilsbunj  and  others,  (1)  it  was 
proposed  to  give  in  evidence  the  dying  declaration  of  a  de- 
ceased person,  and  it  was  proved  that,  about  the  time  of  mak- 
ing the  declaration,  the  deceased  was  asked,  if  he  thought  he 
should  recover,  and  how  he  was  ;  to  which  he  answered,  that 
he  thought  he  should  not  recover,  as  he  was  so  very  ill. 
He  had    been  previously  insensible,  but  remained  sensible 

trial  thought  that  the  objection  of  the  de-  not  to  have   been   very  strictly  pursued 

ceased  hemg^. particeps  criminis  did  not  in  the  earlier  criminal  trials.      See  Lord 

hold  as  to  the  count,  in  which  the  priso-  Pen)broke's    case,   6     Howell,     1325. 

ner  was    charged  as  principal,  and  ex-  Lord   Mohun's   case,  12  Howell,    967. 

pressed  himself  with  some  doubt   ps   to  Bambridge's  case,  14  Howell,  417.    12 

its  validity,  as  it  related  to   the  proof   of  Vin.  Abr. 

the  count,  in    which    the    prisoner   was  (2)  Ibid,      The  deceased  died  in  for- 

charged    as  accessary.       The   prisoner  ty-eight   hours    after   making  a   formal 

was  convicted    upon   that  count.      But  declaration  to  a  magistrate;    but  she  re- 

the  .Judges  overruled  the   objection  as  to  peated  the  substance  of  it  till  the   time 

the  prisoner  being  particepf,    criminis  of  her  death.      And    the  surgeons,  from 

on  the  ground  stated    in    the    text.       la  the  first  moment   of  their    being   called 

fact,  the  question,  whether  the  prisoner  in,  thought  il  impossible   that  she   could 

was  principal  or  accessary,   chiefly  de-  live.     She,  however,  retained  her  sea- 

pended  on  the  declarations,  and  the  ten-  ses  till  the  last  tnoment. 

dency  of  the  declarations  was  to   excul-  (3)   1  East's  P.  C.  357.     In  this  case, 

pate    the   deceased  from    any  criminal  however,    the   majority   of  the    Judges 

participation.     In  the    early  state  trials,  thought,    there    was    no   foundation    for 

it  was  very  common  to  give  in  evidence  supposing,  that  the  deceased   considered 

the     confessions    of   convicted    traitors  herself  in  any  danger.       See   also  Ding- 

against  a  prisoner.     See  Foster's  Crown  ler's  case  1  Leach,  504,  n.J 

Law,  p.  234.  (4)  6  C.  &  P.   886. 

(1)  Per  Eyre,  Ch.  B.,  in  Woodcock's  (1)  7  C.  &  P.  187. 
case,  1  Leach,  503.  This  inquiry  seems 


CIi.   15.]  Dying  Declarations.  205 

for  an  hour,  and  died  the  next  day.  The  evidence  was 
rejected,  on  the  ground  that  the  Judge  did  not  feel  fully 
convinced,  that  the  deceased  had  no  hope  of  recovering.  The 
learned  Judge  observed,  that  people  very  often  use  expressions, 
to  the  effect  that  they  shall  not  recover,  who  have  no  convic- 
tion that  their  death  is  near  approaching  ;  and  that  if  the  de- 
ceased had  felt,  that  his  end  was  drawing  very  near,  he  should 
have  expected  him  to  say  something  of  his  affairs  or  of  those 
who  were  to  have  his  property,  or  to  give  some  directions  as  to 
his  funeral,  or  that  he  would  have  used  some  other  expressions, 
showing  a  feeling  or  conviction,  that  his  death  was  at  hand. 
This  decision  must,  it  is  conceived,  be  considered  only  with 
reference  to  the  peculiar  circumstances  of  the  individual  case  ; 
but  it  may  properly  be  regarded  as  an  authority  to  this  extent, 
that  in  general  the  conduct  of  the  deceased,  and  not  merely 
what  he  says  respecting  his  condition,  must  be  considered, 
for  the  purpose  of  determining  whether  it  is  proper  to  receive 
his  declarations. 

With  respect  to  the  interval  of  time,  which  may  have  elaps-  Prospect  of 
ed  between  the  uttering  of  dying  declarations  and  the  mo-  d^aiill  "'° 
ment  of  death,  there  appears  to  be  no  rule  founded  on  this  cir- 
cumstance alone  :    nor  is  it  consistent  with  the  principle,  up- 
on which  dying  declarations  are  received  in  evidence,  (which, 
as    we  have    seen,  depends  upon  the  state  of  the  declarant's 
mind,)  that  such  declarations  should  be  excluded,  if  not  made 
within  any  precise  limits  of  time.     It  seems,  however,  that  it 
ought  to  appear  that  the  deceased  believed  his  dissolution  to 
be  impending.     And  unquestionably  the  length  of  time  may 
be  a  material  ^consideration,  in  forming  an  inference  as  to  the  [  *299  ] 
state  of  mind  of  the  deceased  with  respect  to  his  expectation 
of  death,  at  the  time  of  making  a  declaration,  especially  if  the 
deceased  has  not  expressed  his  sense  of  his  own  situation. 

In  Woodcock's  case,  (1)  Chief  Baron  Eyre  lays  stress  on  the 
circumstance,  that  the  deceased  was  in  a  situation  which  ren- 
dered almost  immediate  death  inevitable.  And  in  Rex  v.  Van 
Biichell,  (2)  Hullock,  B.,  rejected  a  declaration  made  on  the 
10th  of  May,  the  deceased  having  died  on  the  17th  of  May, 
and  having  stated,  before  making  the  declaration  in  question, 
that  he  felt  satisfied  he  should  never  recover.  Baron 
Hullock  is  reported  to  have  said,  that  "the  principle,  on 
which  declarations  in  articulo  viortis  are  admitted  in  evidence, 
is,  that  they  arc  under  an  impression,  of  almost  immediate 
dissolution.  A  man  may  receive  an  injury,  from  which 
h(!  may  think  he  shall  ultimately  never  recover,  but  still  that 

(1)  Woodcock's  Ciise,  1  Leacli,  502,     sion  "  almost   immediate,"    is    used   by 
and  vide  supra,  p.  295.  Dosariquet,  J  ,    in    Rex    v.    Crockett,  4 

(2)  3  Car.  &  I'.    631.      The  exprcs-     Car.  k.  P.  514. 

34 


266 


Hearsay  Evidence. 


[Ch.   15. 


Expressions 
of  deceas- 
ed. 


would  not  be  sufficient  to  dispense  with  an  oath."  (3)  But 
in  Rex  v.  Bonner^  (4)  dying  declarations  of  a  person  were 
received,  which  were  made  on  a  particular  day,  when  the  de- 
ceased thought  he  might  have  died,  and  it  was  said,  that  the 
circumstance  of  his  having  lived  three  days  longer,  did  not 
alter  the  state  of  things  on  the  day  when  the  statement  was 
made. 

However,  upon  an  inquiry  as  to  the  admissibility  of  a  dying 
declaration,  it  is  necessary  to  hear  all  that  the  deceased  has 
[  *300  ]  *said  relative  to  his  situation,  in  order  to  ascertain  whether  he 
had  that  impression  upon  his  mind,  which  will  make  his  dec- 
larations admissible  in  evidence.  (1)  In  Rex  v.  Crockett,  (2) 
notwithstanding  a  surgeon  told  the  deceased  that  there  was 
no  chance  of  her  recovery,  yet  as  she  said,  that  she  hoped  the 
surgeon  would  do  what  he  could  for  her  for  the  sake  of  her 
family,  the  Judge  rejected  the  declarations  of  the  deceased, 
saying,  that  her  expressions  showed  a  degree  of  hope  in  her 
mind.  In  Rex  v.  Fagetit,  (3)  it  appeared  that  the  deceased 
had  expressed  an  opinion  that  she  should  not  recover,  and  af- 
ter that  she  made  a  declaration,  but  subsequently  on  the 
same  day,  she  asked  her  nephew  if  he  thought  she  would  "  rise 
again."  And  it  was  considered  that  the  declaration  was  not 
receivable,  because  the  subsequent  question  showed,  that  she 
entertained  hopes  of  recovery. 

Representations  made  to  the  deceased,  are  often  of  impor- 
tance, in  inquiring  as  to  the  opinions  he  entertained  of  his 
own  danger.  Upon  the  trial  of  Henry  Welborn  for  the  mur- 
der of  Elizabeth  Page,  by  inducing  her  to  take  poison,  the  dec- 
laration of  the  deceased  was  made  to  an  apothecary  within  an 
hour  of  her  death,  in  consequence  of  the  apothecary  telling 
her,  that  he  must  know  what  she  had  done,  and  that  she  would 
not  live  twenty-four  hours  unless  proper  relief  was  afforded. 
The  majority  of  the  Judges  were  of  opinion  that  the  declara- 
tion was  inadmissible,  because  the  deceased  was  given  to  im- 


Represen- 
tations  to 
deceased. 
Rex  V. 

Wdborn. 


(3)  In  this  case  the  surgeon  at  the 
tiitie  the  deceased  expressed  his  belief 
that  he  should  never  recover,  did  not 
himself  think  that  there  was  danger  of 
death,  and  endeavoured  to  encourage 
the  deceased.  In  Woodcock's  case,  1 
Leach,  503,  the  deceased  died  in  forty- 
eight  hours  after  making  the  declaration 
before  the  magistrate  which  was  receiv- 
ed iu  evidence.  In  Clymer  v.  Littler, 
3  Burr.  1247,  the  declaration  was  in  the 
last  illness  of  the  deceased,  but  three 
weeks  before  his  death.  In  Tinckler's 
case,  1  Leach,  354,  some  of  the  dec- 
larations were  made  on  the  12th  of  Ju- 
ly, and  the  deceased  lingered  till  the  23d, 
and  at  one  time  during   t^s  period   the 


deceased  thought  herself  better.  In 
IMosley's  case,  IMoody's  Cr.  C.  97,  de- 
clarations were  received  in  evidence 
which  had  been  made  eleven  days  be- 
fore the  death  of  the  deceased. 
(4)  6  C.  &  P.   386. 

(1)  Per  Hullock,  B.,  3  Car.  &  P.  631. 
And  see  the  expressions  used  in  Tink- 
ler's case,  1  East's  P.  C.  354.  And 
Rex  V.  Mosley,  1  R.  &  M.  C,  C.  97. 

(2)  4  Carr.  &  P.  544.  The  cir- 
cumstance of  a  deceased  having  sent  for 
more  medicine  after  making  a  declara- 
tion, may  be  considered  material,  with 
reference  to  the  enquiry  concerning  his 
hopes  and  apprehensions. 

(3)  7  C.  &  P.  238. 


C'h.   15.]  Dying  Declarations.  2G7 

derstand,  that  if  she  told  what  was  the  matter  with  her,  she  ^"■.^■. 
might  have  rehef,  and  recover.  (4)  So  in  *the  case  of  Rex  v.  r  *3oi  1 
Christie,  where  the  deceased  asked  his  surgeon,  if  the  wound 
was  necessarily"  mortal,  and  was  told  in  answer,  that  persons 
had  recovered  under  like  circumstances,  but  that  the  case 
was  one  of  extreme  danger :  a  statement  made  immediately 
after  this  conversation  was  rejected  by  Chief  Justice  Abbott 
and  Parke,  J.,  on  the  ground,  that  the  language  of  the  sur- 
geon was  calculated  to  keep  up  in  the  mind  of  the  deceased 
some  expectation  of  recovery.  (1) 

In  the  case  of  Rex  v.  Mosley  and  another,  the  deceased  re-  ^j^^i^' 
ceivcd  the  injury,  of  which  he  died,  on  the  evening  of  the 
30th  of  September,  and  died  on  the  evening  of  the  ]Oth  of 
October  following.  On  the  first  evening,  and  every  day  un- 
til his  death,  he  complained  to  the  nurse  who  attended  him, 
that  he  should  never  get  better.  But  during  his  illness  he 
never  expressed  any  opinion  either  of  hope  or  apprehension  to 
his  surgeon.  The  surgeon  informed  him  that  his  case  was 
hopeless  for  the  first  time,  on  the  morning  of  the  10th  of  Octo- 
ber. The  surgeon  did  not  himself  consider  the  case  quite  hope- 
less till  that  day,  and  had  always  previously  told  the  deceased, 
that  there  was  danger,  but  that  there  were  hopes  of  his  being 
better.  The  Judges  were  unanimously  of  opinion,  that  the 
declarations  of  the  deceased  made  by  him  after  he  was  brought 
home  the  first  evening,  after  he  had  said  that  he  should  not 
get  better,  and  also  at  different  times  during  his  illness,  and 
previous  to  the  surgeon's  communication  to  him  of  his  hope- 
less state,  were  properly  received  in  evidence.  (2)  It  is  to  be 
observed,  that  this  is  distinguishable  from  the  two  preceding 
cases,  on  the  ground,  that  there  was  positive  evidence  that 
the  conviction  of  the  deceased,  as  to  his  own  impending  death 
had  not  been  altered  by  the  representations  of  the  surgeon. 

*In  the  case  of  Rex  v.    Haywaj^d,  (1)  after  a  surgeon    had  [  *302  ] 
examined  the  wound  of  the  deceased,  the   deceased   inquired 
whether  he  was  in  danger  ;  to  Vv^hich  the   surgeon  answered, 
that  he  was,  and  that  the  only  chance  of  his  living  was  keop- 

(4)    1  East's  P.  C.  358.     The  .Judges  CI)  See  a  brief  report  of  this  point  in 

thought  the  apothecary's  examination  of  2  Russei  on  Crimes,  p.  fi85. 

no  importance  wherein   he  stated,    that  (2)   Mosley's  case,  IMoody's  C.  C.  97, 

at  tht!  time  the    declaration    was   made,  vide  ib.  the  particulars  of  the  exarnina- 

he  believed  that   the    deceased    thought  tions  which  run  to  a  considerable  length, 

she  was  getting  well,  from  being  so  free  vide  supra,  p   300.      Rex  v.  Croclielt, 

from  pain,  in  consequence  of  rnortifica-  where  the   deceased   appeared   to    have 

tion;     this    being,    it   was  said    "mere  entertained    liopes,   notwithstanding    the 

opinion,  unwarranted  by  fact."     It  may  surgeon's  representations.  The  surgeon's 

be  observed,   that  although  the  e.xpecta-  own  opinion    does    not  appear  of  much 

tion  of  an  actual  recovery  was   unwar-  consequence  in  such  cases,    vide  supra, 

ranted  by  fact,  yet  that  the  opinion  of  Welborne's  case,  p.  :iOO,  n.  (4) 

the    apothecary   as    to    the     deceased's  (1 )  6  C.  &  P.  IGO. 
state  of  mind,  was  probably  well  found- 
ed. 


268  Hearsay  Evidence.  [Ch.   15, 

ing  himself  quiet ;  upon  which  it  was  contended,  that  the  de- 
clarations, made  by  the  deceased,  were  not  made  at  a  time 
Avhcn  every  hope  in  this  world  was  gone,  and  when  the  par- 
ty was  aware,  that  he  must  inevitably  answer  soon  for  the 
truth  or  falsehood  of  his  statement ;  but  that,  upon  the  sur- 
geon's statement,  he  must  be  taken  to  have  had  some  hope  of 
recovery.  On  this  the  Lord  Chief  Justice  observed,  that  any 
hope  of  recovery,  however  slight,  existing  in  the  mind  of  the 
deceased  at  the  time  of  making  the  declarations,  would  un- 
doubtedly render  the  proof  of  such  declarations,  inadmissible. 
But  upon  the  further  examination  of  the  surgeon,  it  appeared 
that,  before  the  declarations  were  made  on  the  following  even- 
ing, the  deceased  knew  that  he  must  die,  and  that  the  magis- 
trate, previous  to  the  receiving  of  his  declarations,  desired  him 
as  a  dying  man,  to  tell  the  truth  ;  and  that  the  deceased  re- 
plied, he  would.  Upon  this  further  evidence  the  declarations 
of  the  deceased  were  held  to  be  admissible,  and  were  laid  be- 
fore the  jury. 
Manner  of  With  regard  to  tlic  manner,  in  which  a  dying  declaration 
ciarations.  Hiay  bccouie  the  subject  of  legal  evidence,  it  may  be  observ- 
ed, that  in  Woodcock^ s  case,  (2)  an  examination  taken  on  oath 
by  a  magistrate,  and  signed  by  the  deceased  and  by  the  mag- 
istrate, was  received  in  evidence  as  of  the  same  effect,  in 
point  of  admissibility,  with  her  declarations  not  made  with 
the  same  solemnity.  It  is  no  objection  in  point  of  law  to  a 
dying  declaration,  that  it  was  made  in  answer  to  questions.  (3) 
Dying  declarations  have  been  admitted  in  evidence  although 
*it  appeared  that  the  deceased  made  a  subsequent  statement 
Deciara-  wliicli  had  been  taken  in  writing  before  a  magistrate,  but 
edio  writ-'  which  written  examination  was  not  ready  to  be  produced  at 
»ng-  ^  the  trial.  This  point  was  much  discussed  on  the  trial  of 
I  '^Oo  J  Hcason  and  Trantor^  under  the  following  circumstances.  (1) 
The  deceased  stated  the  particulars  of  the  inquiry,  which  oc- 
casioned his  death,  at  three  several  times  in  the  course  of  the 
same  day,  with  an  interval  of  about  an  hour  between  each  ; 
the  first  and  last  account  had  not  been  written,  the  second 
was  reduced  into  writing  in  the  presence  of  a  magistrate  by 
the  same  person,  to  whom  the  former  account  had  been  given  ; 
this  written  statement  Avas  retained  by  the  magistrate,  but  as 
he  had  removed  to  a  distant  part  of  the  country,  and  it  was 
not  known  to  what  place,  the  original  was  not  produced,  and 

(2)  1  Leach,  500.  from  Rex  v.  Reason  and  Trantor,  1  Sir. 

(3)  Rex  V.  Fagent,  7  C.  &  P.  238.  499.  But  such  solicitations  must  natu- 
It  apneais  from  the  case  of  Rex  v.  rally  weaken  the  etl'ect  of  the  evidence. 
Woodcock,  tiiat  the  declaration  may  be  (1)  6  St.  Tr.  202,  205,  S.  C.  16 
admissible,  though  obtained  by  pressing,  Howell,  St.  Tr.  31.  1  Stra.  499,  S.  0. 
and  by  questions.      The  same  appears 


Ch.   15.]  Dying  Declarations.  269 

an  examined  copy  was  rejected.  An  argument  then  ensued 
with  respect  to  the  admissibihty  of  the  first  and  third  state- 
ments of  the  deceased.  The  Chief  Justice,  Sir  John  Pratt, 
was  of  opinion,  that  evidence  of  the  first  and  third  statements 
ought  not  to  be  received,  considering  all  of  them  as  state- 
ments to  the  same  effect  and  forming  one  entire  narration,  of 
which  the  written  examination  was  the  best  proof.  Bat  the 
other  Judges,  (2)  were  of  a  difterent  opinion  ;  they  held  that 
the  three  accounts  given  by  the  deceased  were  distinct  facts, 
and  that  there  was  no  reason  to  exclude  the  evidence  as  to  the 
first  and  third  declarations,  because  the  prosecutor  was  disa- 
bled from  giving  an  account  of  the  second.  The  Avitness 
was  therefore  directed  to  repeat  his  evidence,  leaving  the  ex- 
amination before  the  Justices  *out  of  the  case  ;  and  the  first  [  *304  ] 
as  well  as  the  third  statement  was  admitted. 

When  the  declaration  has  been  taken  down  in  writing  and 
signed  by  the  deceased ;  it  has  been  held,  that  neither  a  copy 
of  the  writing  nor  parol  evidence  of  it  can  be  received.  (1) 

The   statement   made    by  the  deceased   must  be    such   as  ^"p^,^fo',°° 
would  be  receivable,  if  he  were  alive  and  could  be  examined 
as  a  witness  ;  any  declaration  therefore  upon  matters  of  opin- 
ion, as  distinguished  from  facts,  would  not   be  receivable.  (2) 

It  has  been  laid  down,  that    when  a   declaration  has  been  ,^.^™dec|a'. 
made  by  a  party  in  articulo  mortis,  the  question,  Avhether,  un-  rations, 
der  all  the  circumstances    of  the  case,    the  declaration  is    ad-  ^"faw!" 
missible  in  evidence,  is  a  question  exclusively  for  the  consider- 
ation of  the  Court.  (3)     The  question  whether  any  particular 
piece  of  evidence  be  admissible  is  upon  principle  always  to  be 
determined  by  the  Judge.  But  in  the  case  under  consideration, 
that  question  depends  on  a  difficult    preliminary  investigation 
of  fact,  much   more    within  the    ordinary  province    of  juries 

(2)  1  Stra.  500.  The  reporter  was  (1)  Rex.  v.  Gay,  7  C.  &  P.  230,  ai>d 
one  of  the  counsel  for  the  prosecution,  see  Trowter's  case,  12  Vin.  Ab.  118, 
From  the  report  in  the  state  trials  it  East's  P.  C.  The  correctness  of  these 
would  appear  that  the  Chief  Justice  and  decisions  will  be  belter  examined  after 
Mr.  Justice  Powis  were  against  receiving  a  consideration  of  the  authorities  in  the 
the  evidence,  and  Mr.  Justice  Eyre  and  chapter  upon  Secondary  Evidence,  to 
Mr.  Justice  Fortescue  for  receiving  it.  which  they  more  properly  belong. 
The  evidence,  however,  according  to  (2)  Rex.  v.  Sellers,  Carr.  Cr.  L.  233. 
that  report  was  at  last  received.  At  the  (3)  By  Lord  Elienborough,  in  Rex  v. 
time  of  this  trial  it  does  not  appear  to  Ilucks,  1  Stark.  C.  523.  Lord  Ellen- 
have  been  settled  that  an  examination  borough  said,  that  this  point  had  been 
by  .lustices  of  the  Peace  in  liie  absence  considered  by  the  judges,  on  a  question 
of  the  prisoner  was  extra-judicial,  see  proposed  to  them  by  the  judges  of  Ire- 
Woodcock's  case,  1  Leach,  502.  Asa  land;  and  such  was  their  unanimous 
consequence  of  the  examination  being  opinion,  liy  all  the  judges  in  John's  case, 
extra-judicial,  it  would  follow  that  it  1  East's  P.  C.  357,  and  in  VVclborn's 
would  not  be  admissible  itself  in  evidence  case,  1  East's  P.  C.  36().  And  see  Rex 
at  least  unless  it  were  signed  by  the  de-  v.  Van  liutchell,  3  Carr.  &  P.  631. 
ceased.  Whether  the  written  examina-  Rex  u.  Crocket,  4  Carr.  &  P.  544,  and 
tion,  if  signed  by  the  deceased,  would  all  the  more  modern  cases, 
have  precluded  [larol  evidence,  vide  in- 
fra, p.  304. 


270  Hearsay  Evidence.  [Ch.   15. 

than  of  Judges ;  and  where  the  evidence  is  admitted,  it  is 
scarcely  to  be  expected,  that  juries  will  pay  implicit  obe- 
dience to  the  decision  of  the  Judge,  founded  as  it  is  on  a  con- 
clusion of  fact,  a  subject  upon  which  the  constitution  regards 
them  as  peculiarly  competent  to  form  a  right  opinion.  (4) 
H^ii^\"ec-  *With  respect  to  the  eflect  of  dying  declarations,  it  is  to  be 
laratfons.  obscrved,  that  although  there  may  have  been  an  utter  aban- 
[  *305  ]  donment  of  all  hope  of  recovery,  it  will  often  happen,  the 
particulars  of  the  violence,  to  which  the  deceased  has  spoken, 
were  likely  to  have  occurred  under  circumstances  of  confu- 
sion and  surprise  calculated  to  prevent  their  being  accurately 
observed.  The  consequences  also  of  the  violence  may  occa- 
sion an  injury  to  the  mind,  and  an  indistinctness  of  memory 
as  to  the  particular  transaction.  The  deceased  may  have 
stated  his  inferences  from  facts,  concerning  which  he  may 
have  drawn  a  wrong  conclusion,  or  he  may  have  omitted  im- 
portant particulars,  from  not  having  his  attention  called  to 
them.  Such  evidence  therefore  is  liable  to  be  very  incom- 
plete. He  may  naturally  also  be  disposed  to  give  a  partial 
account  of  the  occurrence,  although  possibly  not  influenced 
by  animosity  or  ill-will.  But,  it  cannot  be  concealed,  ani- 
mosity and  resentment  are  not  unlikely  to  be  felt  in  such  a 
situation.  The  passion  of  anger  once  excited,  may  not  have 
been  entirely  extinguished,  even  when  all  hope  of  life  is 
lost.  (1)  If  these  observations  are  founded  upon  the  common 
experience  of  human  nature,  it  is  necessary  to  be  cautious  in 
receiving  impressions  from  accounts  given  by  persons  in  a  dy- 
r  *306  1  ing  state  ;  especially  when  it  is  considered  *that  they  cannot 

(4)  The  matter  has  been  spoken  of  as  red.  Second,  Whether  the  deceased 
an  extremely  painful  one  for  the  Judge  did  make  the  declarations  alleged  against 
to  decide  upon  ;  per  Coleridge,  J.,  in  7  the  accused.  Third,  Whether  the  de- 
C.  Si.  P.  190.  The  question  was  left  to  clarations  are  to  be  admitted  as  sincere 
the  jury  by  Chief  Baron  Eyre,  in  Wood-  and  accurate.  It  may  be  observed,  that 
cock's  case,  1  Leach,  502.  But  the  the  first  of  these  inquiries  is,  abstractedly 
Judge  so  far  decided  the  point  of  adinis-  considered,  peculiaily  proper  for  a  jury; 
sibility,  as  to  receive  the  evidence,  di-  but  that  it  would  be  dangerous  to  leave 
recting  the  jury  to  reject  it  if  they  came  to  juries  the  consideration  of  the  two  lat- 
to  a  particular  conclusion  respecting  cer-  ter  inquiries,  upon  a  contingency  to 
tain  facts.  It  may  be  observed,  howev-  which  it  is  probable  that  they  would,  in 
er,  that  the  general  competency  and  dis-  many  instances,  pay  no  regard.  It  may 
position  of  juries  to  discard  any  piece  of  be  observed,  that  this  is  not  the  only  in- 
evidence  from  their  minds  which  has  been  stance  where  it  is  the  province  of  the 
once  brought  before  them,  may  be  ques-  Judge  to  decide  complicated  questions  of 
tioned.  tiir  D.  Evans,  2  Pothier,  293,  fact,  as  preliminary  to  the  adtnission  of 
contends  for  the  propriety  of  leaving  the  evidence.  It  is  said  in  1  Tyrw.  806, 
whole  question  of  the  admissibility  and  that  the  Judge,  in  such  cases,  is  not  to 
effect  of  dying  declarations  to  the  jury,  stop  the  cause  for  the  purpose  of  having 
He  says,  "  that  the  inquiries  connected  the  preliminary  question  of  fact  decided 
with  the  evidence  of  dying  declarations,  by  the  jury.  The  question  in  that  case 
are  first,  whether  the  deceased  were  re-  was  one  of  identity, 
ally  under  such  circumstances,  or  used  (1)  In  Rex  u.  Crockett,  4  C.  &  P. 
such  expressions  from  which  the  ap-  544.  The  declaration  was  ♦«  that  damn- 
prehension  in  question  is  correctly  infer-  ed  man  has  poisoned  tne." 


CIi.   15. J  Dying  Declarations.  271 

be  subjected  to  the  power  of  cross-examination, — a  power, 
quite  as  necessary,  for  securing  the  truth,  as  the  rehgious  ob- 
hgation  of  an  oath  can  be.  The  security  also,  which  courts 
of  justice  have  in  ordinary  cases,  for  enforcing  truth,  by  the 
terms  of  punishment  and  the  penalties  of  perjury,  cannot  ex- 
ist in  this  case.  (1)  The  remark  before  made,  on  verbal  state- 
ments, which  have  been  heard  and  reported  by  witnesses,  apr 
plies  equally  to  dying  declarations,  namely,  that  they  are  lia- 
ble to  be  misunderstood,  and  misreported,  from  inattention, 
from  misunderstanding,  or  from  infirmity  of  memory.  In 
one  of  the  latest  cases  upon  the  subject,  this  species  of  proof 
is  spoken  of  as  an  anomaly,  and  contrary  to  all  the  general 
rules  of  evidence,  yet  as  having,  where  it  is  received,  the 
greatest  weight  with  juries.  (2)  (a) 

(1)  Richard   Coleman,    a.   d.    1749,  See  ]\Ir.  Fox's  observations  in  his  histo- 

was  executed  for  the  rape  and  murder  of  ry  of  the    reign  of  James  II.,  upon  the 

Anne  Green.      The  conviction  proceed-  dying   declaration  of  Ruujbold  in  16S5, 

ed  on  the  dying  declaration  of  the  pros-  that  he  had   not  been  concerned  in  any 

ecutrix.     But  Coleman's  innocence  was  project    for    assassinating     the    King   or 

established  two  years  afterwards,  when  DuUe  of  York  in  the  Rye  House  Plot, 
another  person  was     executed     for    the  (2)  Per  Coleridge,  J.,  in  Rex  «.  Spils- 

same  oflence  upon  the  clearest  evidence,  bury,  7  C.  &  P.  196. 

(a)  Dying  persons'  declarations  should  be  confined  to  cases  of  great  crime,  where 
frequently  the  party  injured  is  the  only  witness: — in  civil  cases  they  should  never 
be  admitted;  or,  if  admitted  at  all,  not  to  avoid  a  will  regularly  executed.  Per 
Livingston,  J.  2  J.  R.  32.  The  declarations  of  a  testator  are  admissible  only  to 
explain  a  latent  ambiguity,  or  to  rebut  an  equity.  3  Rand  90.  In  Comstock  v. 
Hadlyme,  8  Conn.  255,  the  declarations  of  the  testatrix  were  held  to  be  admissible 
only  to  sliow  the  state  of  her  mind. 

In  the  case  of  Vass  v.  The  Commonwealth,  3  Leigh's  R.  7S6,  Lomax,  J.  in  de- 
livering the  judgment  of  the  court,  says: — "  To  make  dying  declarations  receivable 
as  evidence  in  any  case,  it  has  been  laid  down,  that  it  must  appear  that  the  deceas- 
ed was  conscious  of  his  being  in  a  dying  state  at  the  time  he  made  them.  Tliis  in- 
quiry into  the  consciousness  of  the  deceased  is  collateral  to  the  evidence  of  the  dy- 
ing declarations  themselves,  and  the  judgment  to  be  pronounced  upon  it  depends 
upon  proofs  which  may  be  wholly  distinct  from  and  unconnected  with  the  declara- 
tions. The  judge  who  tried  the  cause  was  of  opinion  that  the  deceased  was  con- 
scious of  liis  approaching  death,  at  the  time  the  questions  were  put  to  him  and  the 
answers  thereto  were  given,  and  that  he  was  in  his  right  mind  and  understood  the 
questions.  This  Court  has  no  warrant  to  pronounce  that  opinion  incorrect."  He 
observes  again — "  If  facts  be  stated,  which  are  obviously  designed  by  the  party 
who  stales  them,  to  be  connected  with  other  facts,  which  he  is  about  to  disclose,  to 
be  qualified  by  them,  so  that  the  narrative  should  form  one  entire  and  complete  his- 
tory of  the  whole  transaction;  and  before  the  purposed  disclosure  is  made  it  be  in- 
terrupted, and  the  narrative  remains  unfinished,  such  partial  declaration  would  not 
be  admissible  in  evidence."     See  also  Finn's  case,  5  Rand.  701. 

"  liut  if  the  declaration  states  facts  distinctly,  and  as  far  as  the  declaration  goes, 
it  does  not  necessarily  appear  that  the  facts  thus  stated  were  designed  to  be  connect- 
ed with  some  other  facts,  which  may  be  supposed  to  form  a  part  of  the  full  and 
complete  account  of  the  transaction,  it  would  be  going  too  far  to  reject  altogether 
the  matter  thus  disclosed,  upon  any  presumption  of  law,  that  the  narrator  was  pre- 
cluded by  his  situation  (he  being  sound  in  his  mind)  from  giving  a  full  and  complete 
account  of  the  transaction;  or  upon  any  presumption  of  fact  that  the  court  could 
form,  that  what  was  disclosed  was  only  a  part  of  the  truth,  and  not  the  wliole  truth 
of  the  case."     Per  Lomax,  J.  3  Leigh,  78(). 

"  If  his  situation  was  such  as  to  disable  him,  from  any  other  cause,  independent 
of  the  state  of  his  reason,  from  giving  a  full  and  complete  account  of  the  transac- 


27'2  Hearsay   Evidence.  [Cli.   16. 

CHAPTER  XVI. 

DECLARATIONS  AND  ENTRIES  BY  DECEASED  PERSONS. 

An  exception  to  tlic  rule  excluding  hearsay  evidence  has 
been  established  in  modern  times,  in  the  case  of  declarations 
and  entries  made  by  persons  since  deceased.  This  exception 
applies  to  a  description  of  facts,  the  evidence  of  which,  being 
nsually  confined  to  the  knowledge  of  a  few  persons,  would 
frequently  be  lost,  if  tlie  strict  rule,  which  excludes  hearsay 
evidence,  were  enforced.  And  it  will  be  seen,  that  by  the 
qualifications,  under  which  this  kind  of  evidence  is  admitted, 
many  of  the  general  objections  to  hearsay  evidence  are  ob- 
[  *307  ]  viated.  *This  subject  will  be'conveniently  discussed,  by  con- 
sidering, first,  those  declarations  and  entries,  which  are  re- 
ceivable on  the  ground  of  their  operating  against  the  interest 
of  the  persons  making  them,  and,  secondly,  those  which  are 
receivable  on  the  ground  of  their  being  contemporary  entries, 
in  the  ordinary  course  of  duty  or  employment.  The  two  di- 
visions, however,  are  intimately  connected  with  each  other. 

Section  1. 

Declarations  and  Entries  against  the  Interest  of  the  Persons 
making  them. 

General  It  is  a  rule  of  evidcuce  clearly  established,  that  declarations 

of  persons  since  deceased  (under  which  term  of  declarations 
all  written  statements  and  entries  are  intended  to  be  compre- 
Iiended,)  are  admissible,  where  those  persons  are  to  be  pre- 
sumed conusant  of  the  subject  matter  of  the  declarations,  and 
where  the  declarations  apparently  operate  against  their  own 

adniissioii°^  interest.  (1)     It  is  presumed  where  declarations  are  made  im- 

(1)  By  tlie  Master  of  the  Rolls,  in  that  the  declarations  should  be  connected 
Short  V.  Lee,  2  Jac.  &  ^V.  464.  By  with  the  facts  to  which  tiiey  relate, — <\.s 
Bajley,  J.,  in  Roe  v.  Rohson,  15  East,  the  possession  of  land,  or  some  course  of 
34.  By  Parke,  J.  in  ftliddieton  w.  Mel-  business,  or  the  performance  of  some  or- 
ton,  10  Barn,  ^c  Ciess.  32S.  The  t/tc/a  dinary  duty;  though  these  circumstances 
of  the  Judges  do  not  seem  to  require  /)«-  are  generally  to  be  found  in  the  cases. 
culiar  means  of  knowledge  in  the  de-  Nor  does  it  seem  requisite,  that  the  de- 
clarants; nor   to   point  out   a  necessity,  clarations  should  have  been  made  by  per- 

tion,  and  from  telling  the  whole  truth,  not  merely  a  part  of  the  truth,  that  was  a 
matter  for  the  decision  of  the  jury,  and  not  of  the  Court."     id. 

The  law  has  no-where  defined  what  shall  amount  to  dying  declarations,  or  the 
form  in  which  they  shall  be  uttered.  It  might  be  unsafe  that  it  should  do  so. 
Whether  the  dying  declarations  be  sucii  as  to  entitle  them  to  be  regarded  as  such  to 
be  offered  in  evidence,  must  depend  upon  the  temper  of  ihe  deceased  when  he  made 
them,  and  upon  the  circumstances  under  which  they  were  made.     id. 

The  declarations  of  the  deceased  before  the  stroke  which  occasioned  his  death, 
were  held  iuadmissible.     2  Maryland,  120. 


Sect.   J.j  Declai'ations  against  Interest.  273 

der  these  circumstances,  that  they  are  entitled  to  credit,  be- 
cause the  regard  which  men  pay  to  their  own  interests,  may 
safely  be  considered  as  a  sufficient  guarantee  against  their  pre- 
judicing themselves  by  any  erroneous  statement,  and  the  as- 
sumed tendency  of  the  declarations  precludes  the  possibility 
of  any  fraudulent  statement.  Indeed  the  apprehension  of 
fraud  in  such  cases  is  in  a  great  measure  removed  without  ref- 
erence to  the  *fact  of  the  declarations  being  against  interest,  [  *308  ] 
when  it  is  considered  that  declarations  are  not  receivable  dur- 
ing the  life-time  of  the  authors  of  them  ;  and  that  it  is  always 
competent  for  the  party,  against  whom  they  are  produced,  to 
point  out  any  sinister  motive  for  making  them.  It  is  true,  the 
great  tests  of  the  fidelity,  accuracy,  and  completeness  of  judi- 
cial evidence,  are  here  wanting.  But  the  inconveniences 
which  would  result  from  the  extinction  of  evidence  are  consid- 
ered as  outweighing,  in  the  generality  of  cases,  the  inconveni- 
ence of  admitting  such  hearsay  declarations,  luider  the  limita- 
tions and  securities  above  mentioned. 

It  will  perhaps  be  thought,  in  many  of  the  decisions  respect- 
ing the  rule  under  consideration,  that  the  interest  of  the  party 
was  so  slight  as  to  produce  little,  if  any  effect.  And  it  would 
seem  that  the  Judges,  from  an  apprehension  of  extinguishing 
the  truth  by  rejecting  evidence,  have,  in  many  instances,  been 
contented  with  very  unsatisfactory  presumptions,  as  to  the 
fact  of  the  party's  interest  being  opposed  to  his  declaration. 

In  some  cases,  the  Courts  appear  to  have  considered  declar- 
ations to  be  admissible,  without  proof  that  the  party  making 
them  had  any  actually  existing  interest,  which  could  be  les- 
sened or  endangered.  (1)  Hence,  a  declaration,  accompanied 
by  an  admission  apparently  against  interest,  would  be  receiva- 
ble, although,  in  point  of  fact,  the  author  of  the  declaration 
did  not  compromise  his  interest  at  all,  but  only  made  an  ad- 
mission apparently  against  interest,  and  without  any  real  trans- 
action to  which  it  could  relate,  in  order  to  render  his  declara- 

sons  in  (he  course  of  any  business  or  cm-  th.it  the  pntry  wns  proved  liy  extrinsic 
ploymerit;  and  it  seems  that  deRJaralion-i  evidence  to  have  heen  made  against  iii- 
against  interest  need  not  be  con'.empora-  terest.  'I'lius,  in  llingharii  r.  ilidiway, 
neous  with  the  Tacts  to  which  they  re-  10  East,  109,  ],ord  Eiienboruugh  ob- 
late. By  Parke,  .1.,  in  Doe  v.  Turford,  serves,  that  the  midwife  iiad  an  interest 
3  Barn.  8f  Ad.  890.  By  the  Masier  of  not  to  discharjre  a  claim,  which  it  «[>- 
the  Rolls,  in  Short  ».  Lee,  2  Jac.  Sf  W.  fwars  from  other  evidcnre,  he  was  en- 
464,  where  it  was  said  that  it  is  not  ne-  titled  to.  And  in  Doe  v  Vowles,  1  Mo. 
cessary,  m  the  case  of  collectors'  hooks,  4"  llob.  Litlledale,  .1.,  rejected  a  irades- 
to  produce  the  very  paper  they  collected  man's  receipt  apparently  on  the  ground 
by.  'I'hat  the  declaration  of  a  living  that  it  did  not  appear  aliunde,  that  Im 
person  against  interest  cannot  lie  rerciv-  was  entitled  to  make  a  fliar;re.  In  Trea^e 
ed.  Spnif;o  v.  Brown,  9  B.  4-  C.  9;;.j.  v.  Barrett,  J  (.'r.  I\l.  i,-  K.  919,  it  was 
(1)  rfee  ihe  cases  collected  in  Barker  considered  necessary  to  prove  a  person 
V.  Hay,  2  Russ.  ()7,  n.  In  a  few  cases,  in  possession  of  land,  before  his  declara- 
where  the  facts  adinitt'-r)  of  it,  the  .ludg-  tion  could  be  used  as  being  agninst  th* 
ea  have  laid  stres.s  on  tho   circumstance,  interest  of  the  occupier. 


274  Hearsay  Evidence.  [Ch.   16. 

tion  receivable.  In  several  of  the  cases  decided  upon  this  sub- 
[  *309  ]  ject,  *the  inference,  of  the  declarations  being  against  interest, 
appears  to  have  been  on  the  unwarrantable  assumption  of  the 
existence  of  real  facts  as  a  foundation  for  the  statement ;  and 
the  accuracy  of  the  declarations  has  been  inferred  from  a  sup- 
position, that  the  persons  making  an  entry  must  have  been 
particularly  cautious  in  the  statement  of  all  it's  details,  as  pre- 
cluding themselves  from  afterwards  attempting  to  set  up  an 
unrighteous  demand. 

The  Courts  have  in  numerous  instances  been  satisfied  that 
declarations  were  against  interest,  where  they  have  been  made 
in  private  books  retained  within  the  custody  of  their  owners, 
and  not,  as  in  the  case  of  receiver's  accounts,  subjected  to  the 
inspection  of  others.  (1)  In  such  cases,  the  declarations  could 
only  have  been  available  against  interest  in  the  event  of  acci- 
dent or  mistake,  or  possibly  in  case  of  receiving  notice  to  pro- 
duce books  on  a  trial.  (2)  Under  such  circumstances,  a  re- 
gard to  self-interest  appears  to  be  not  a  sufficient  guarantee 
against  fraud,  and  a  very  inadequate  one  against  negligence 
or  mistake. 

It  is  to  be  observed,  that,  without  knowing  what  proofs  ex- 
isted of  a  particular  fact,  it  is  impossible  to  estimate  properly 
the  value  of  an  admission.  A  declaration  may,  on  the  lace  of 
it,  appear  to  be  more  adverse  in  one  respect  than  beneficial  in 
another,  yet  this  may  not  be  really  in  a  case,  where  the  ad- 
mission apparently  adverse  is  of  a  matter  which  was  notorious. 
[  *310  ]  *It  is,  for  example,  often  capable  of  the  strictest  proof,  that  a 
particular  payment  has  been  made  ;  but  the  ground  of  the  pay- 
ment may  be  matter  of  controversy,  which  the  party  acknowl- 
edging may  have  an  interest  to  attribute  to  one  ground  rather 
than  to  another. 

Although  it  is  true,  that  a  person  is  not  allowed  to  avail 
himself  of  his  own  declarations  in  evidence,  and  that  the  ca- 
ses may  be  few  and  peculiar  in  which  they  can  be  available 
for  his  representatives  ;  yet  there  may  be  a  strong  suspicion  of 
bias,  at  least,  when  the  entries  may  be  made  available  for  par- 
ties standing  in  pari  jure  with  the  declarant.     And  where  no 

(1)  As  in  Hingham  i>.  Ridgwdv,  10  accounted.  Nor  to  the  accounts  of  pub- 
East,  109,  infra.,  p.  .326.  In  ftliddle-  lie  olRcers,  as  ciiurciiwardens,  Stead  v. 
Ion  t).  Melton,  10  Barn.  ^  Cress.  328,  Heaton,  in/ra,  p.  327. 
in/ra,  p.  311,  the  collector  collected  by  (2)  In  Roe  m.  Rawlins,  7  East,  290, 
the  book  in  question,  from  which  it  Lord  Ellenborough  says,  "If  this  paper 
might  have  become  notorious  that  he  had  had  ever  met  the  eye,  it  might  have 
Boch  a  book;  but  this  circumstance  was  been  used  adversely."  It  may  be  ob- 
not  noticed  by  the  Court.  The  remark  served  on  the  other  hand,  that  the  prob- 
in  the  text  does  not  apply  to  the  books  ability  of  a  private  book  meeting  the  eye, 
or  accounts  of  receivers  and  stewards  might  operate  to  induce  a  person  to  give 
which  are  ordinarily  submitted  for  the  a  colour  to  the  circumstances  connected 
inspection  of  their  employers,  according  with  a  receipt,  where  the  receipt  could 
to  the  interest  in  which  they  engage  to  not  be  denied, 
account,  and  frequently  appear  to  have 


Sect.   1.]  Declaratio7is  against  Interest.  275 

motive  of  interest  can  be  suggested,  yet  the  declarations  may 
be  influenced  by  feelings  equally  likely  to  occasion  misrepre- 
sentation. The  circumstance,  that  the  declarations  are  against 
a  person's  own  interest,  aftbrds  a  very  insufficient  guarantee  of 
fidelity  and  accuracy,  unless  it  clearly  appear  not  only  that  a 
particular  fact  stated  in  the  declaration,  but  the  whole  declar- 
ation, in  every  view  of  it,  is  prejudicial  to  the  interest  of  the 
maker  ,•  and  unless  it  appear,  further,  that  the  means  will  be 
afforded  to  others  of  using  the  declaration  against  him, 
and  that  others  will  probably  have  occasion  so  to  use  it. 

The  doctrine  concerning  declarations  against  interest  ap- 
pears to  have  been  extended  somewhat  beyond  the  reason  up- 
on which  it  is  founded,  in  those  cases  where  the  person  mak- 
ing the  declaration  could  not  have  promised  himself  any  ad- 
vantage, either  by  omitting  to  make  it,  or  by  stating  it  in  a 
different  way.  It  will  appear,  in  many  of  the  cases,  that  no 
sacrifice  of  interest  was  incurred  by  making  the  declaration, 
but  the  prejudice  to  the  maker  consisted  merely  in  affording 
the  possible,  but  very  improbable  means,  of  confuting  an  un- 
just claim,  which  it  must  be  supposed  highly  improbable 
would  ever  be  set  up.  It  may  be  observed,  that,  whether  the 
circumstance,  of  a  declaration  being  against  interest,  be  a  fit 
criterion  or  not  for  it's  admissibility,  the  credit  and  weight 
due  to  such  a  declaration  will  materially  depend  on  it's  hav- 
ing been  made  in  the  course  of  business,  and  under  the  cir- 
cumstances which  form  *the  subject  of  consideration  under  [  *311  ] 
the  next  section  of  this  chapter.  It  is,  however,  clearly  estab- 
lished, that  declarations  of  persons,  contrary  to  their  interest, 
at  whatever  time  made,  are,  after  their  deaths,  receivable  in 
evidence,  (i)  {a) 

The  occasion,  upon   which  the   exception   to  the   rule  for  Receipt  of 
the  exclusion  of  hearsay  testimony,  has  been  most  commonly  "'°"^^' 
applied,  is  where    the    evidence  consists  of  entries  of  the  re- 
ceipt of  money,  whereby  the   deceased   person   has  charged 
himself  as  being  accountable  for  the  money  received.     En- 
CD  In  many  of  the  authorities  another     by  living  witnesses  or  other  evidence.  It 
qualification  is  introduced,   that  the  per-     is  sometimes  said   that  declarations  must 
son,   whose   declarations  are   received,     not  only  be  against  interest,  but  that  the 
must  have  had  peculiar  means  of  knowl-     declarant  mu3t  have  no    interest  to  mis- 
edge.     The  rule  as  expressed  in  the  text     represent  the  fact.     But  it  would  seem, 
supposes  them    to    have  had    a  personal     that  if  upon    the  whole    the  declaration 
interest  in  the  transaction,  and  it  will  be     was  against  the  interest  of  the  declarant, 
seen  that  it  is  not  essential   that  the  sub-     it  would  be  receivable, 
ject  of  the  declaration  cannot  be  proved 

(a)  All  the  cases  in  which  the  declarations  of  a  party,  are  said  to  be  evidence 
against  him,  show  that  ho  had,  at  the  time  of  making  such  declarations,  an  existing 
interest.  3  Rand.  R.  399.  The  reasonable  presumption,  is,  that  no  person  will 
make  any  declarations  against  his  interest,  unless  it  be  founded  in  truth.  If  the  de- 
clarations, therefore,  were  made  before  he  had  any  interest,  they  are  not  adniis»w 
ble.     id. 


270 


Hearsay  Evidence. 


[Ch.   16. 


Stewards' 
books. 

[*312] 


tries,  so  made,  are  evidence  of  the  fact  of  the  receipt  of  such 
money.  Thus,  where  an  entry  was  made  by  a  deceased  col- 
lector of  taxes,  though  in  a  private  book  kept  by  him  for  his 
own  convenience,  whereby  he  charged  himself  with  the  re- 
ceipt of  sums  of  money,  the  entry  was  held  to  be  admissible 
evidence  to  prove  the  fact  of  the  receipt  of  the  money  in  an 
action  between  third  persons,  agreeably  to  the  general  rule 
above  stated.  (2) 

*The  acknowledgments  by  deceased  stewards,  reeves,  and 
bailiffs  in  their  books,  of  the  receipt  of  money  for  which  they 
have  been  accountable,  are  very  frequently  adduced  in  evi- 
dence by  their  employers,  or  those  claiming  under  them,  or 
by  strangers.  (1 )  [a] 


(2)  IMiddleton  v.  Melton,  10  Barn.  & 
Cresi.  317,  referred  to  by  Bayley,  15., 
1  Cr.  &  J,  456.  The  action  was  brought 
against  ifie  surety  of  the  collector,  on  a 
bond  conditioned  for  the  due  payment 
i)f  taxes  by  tlie  collector.  But  tlie  Court 
decided  the  case  on  the  ground  of  the 
general  rule  in  the  text,  disregarding  all 
reference  to  the  circumstance  of  any 
privity  between  the  deceased  and  the 
defendant.  In  Goss  v.  Watlington,  S 
Barn  &  Cress.  550.  Whitnash  v.  George 
3  Brod.  &  Bing.  132,  the  judgments 
proceeded  on  the  ground,  that  entries 
had  been  made  in  a  book,  which  it  was 
the  duty  of  the  principal  to  keep,  and 
for  the  performance  of  which  duty  the 
defendant  hud  become  surely;  and  the 
decisions  in  those  cases  were  founded 
principally  on  that  circumstance.  In 
.Midleton  y.  Melton,  the  entries  were  in 
a  private  book  kept  for  tho  collector's 
own  convenience.  And  the  Court,  in 
the  latter  case,  observed,  that  they 
thougiit  the  two  former  decisions  might 
be  supported  on  the  more  general  prin- 
ciple. In  Middleton  f.  Melton,  the  act 
was  incomplete  from  there  being  no  en- 
try in  the  public  book,  whereas  in  tlie 
other  cases  upon  this  subject,  the  entries 
were  all  that  was  intended  to  be  done 
by  the  parties  making  them.  But  tliia 
circumstance,  it  was  considered,  did  not 
affect  the  principle,  on  which  the  entries 
were  admitted.  By  Littledale,  J.,  10 
Barn  &  Cress.  326.     The  entries  of  the 


names  of  persons  and  sums  assessed  in 
the  private  book  were  copied  from  a  du- 
plicate assessment;  and  it  was  the  collec- 
tor's practice  to  collect  by  that  private 
book,  and  to  mark  with  ticks  all  the  sums 
lie  received ;  he  then  entered  receipts  into 
the  duplicate  assessment;  but  the  receipt 
of  the  sums,  for  which  the  action  was 
brought,  though  noticed  in  the  private 
book,  had  not  been  entered  in  the  dupli- 
cate assessment.  Tha  evidence  is  not 
receivable  on  the  ground  of  it's  being  an 
admission,  and  therefore  it  would  not  be 
evidence,  except  in  the  case  of  the 
death  of  the  person  making  the  entry. 
Smith  V.  Whitiingham,  6  C.  &  P.  78. 
Spargo  V  Brown,  9  B.  &  C.  935. 

( 1 )  See  the  case  of  Barry  v.  Bebbing- 
ton,  4  T.  R.  514,  stated  infra.  Ed- 
wards V.  Rees,  7  C.  &  P.  340.  Man- 
ning V.  Lechmero,  1  Atk.  453.  Entries 
by  bailiffs  or  stewards  often  acquire  ad- 
ditional credit  from  the  circumstance, 
that  such  entries  would,  in  the  ordinary 
course  of  business,  be  expected  to  be 
kept,  and  that  the  fact  recorded  is  in 
some  measure  to  be  presumed  from  the 
existence  of  the  entry.  And  the  accounts 
of  stewards  seem  to  be  of  greater  credit 
than  entries  in  private  books,  inasmuch 
as  they  are  usually  subjected  to  inspec- 
tion, and  are  the  foundation  of  transac- 
tions between  the  steward  and  his  em- 
ployer. That  this  is  a  usual  mode  of 
proving  payments  under  old  leases  and 
licenses,  see  1  Camp.  310,  respecting  re- 


(a)  See  the  following  cases  which  uphold  the  principle  that  the  original  entries 
of  a  deceased  agent  when  made  in  the  usual  course  of  business,  of  acts,  which  his 
duty  in  such  business,  required  him  to  do  for  others,  are  admissible  in  evidence  of 
the  acts  so  done.  Nicholls  v.  Webb,  8  Wheat.  332;  Merrill  v.  Ithaca  &  Oswego, 
R.  R.  Co.,  16  Wend.  586;  12  S.  &  R.  49.  And  it  seems  to  be  considered  in 
some  cases  that  the  evidence  is  admissible,  although  the  clerk  who  made  the  entries 
is  not  dead,  but  out  of  the  state.  Elms  v.  Chevis,  2  M'Cord,  349.  See  15  Mass. 
384;  12  S.  &  R.  49.  But  the  late  case  from  Wendell  expressly  decides  that  ab- 
genco  from  the  slate  is  no  ground  for  tho  admission  of  the  evidence. 


Sect.   1.]  Declarations  against  Interest.  '277 

But  it  ought  clearly  to  appear,  that  the  effect  of  the  entries 
was  to  charge  the  bailiff  or  steward.  In  an  action  for  copy- 
hold fines,  the  book  of  a  deceased  steward  of  a  manor  was 
tendered  in   evidence,  containing   entries   of  assessments  of  , 

fines,  as  well  those  which  had  been  paid  as  those  which  had 
not ;  and  it  appeared,  that  the  steward  made  a  book  at  the  end 
of  each  year,  in  which  book  he  put  down  the  fines  that  had 
been  actually  paid.  The  former  book  was  rejected,  on  the 
*ground  that  it  did  not  appear  to  contain  any  evidence  that  the  [  *313  ] 
steward  had  charged  himself.  (1) 

Accounts  of  this  nature  are  commonly  produced  from  the 
muniments  of  the  persons  to  whom  the  accounts  were  render- 
ed, and  when  this  is  the  case,  they  amount  to  proof,  that  the 
person  rendering  them  has  actually  put  it  into  the  power  of 
his  employer  to  use  them  against  him,  as  evidence  of  money 
had  and  received  to  the  employer's  use.  This  circumstance 
appears  to  entitle  them  to  much  greater  credit  than  is  due  to 
entries  in  private  books,  which  have  never  passed  into  the 
custody  of  persons  interested  to  make  use  of  them  against  the 
makers  of  the  entries.  (2)  Such  a  test  of  the  authenticity 
and  accuracy  of  the  entries  is,  however,  not  essential  to  their 
being  admitted  in  evidence,  as  appears  by  the  preceding  cases, 
and  others  which  will  be  presently  cited.  As  far  indeed,  as 
regards  the  entries  to  be  found  in  the  books  of  some  particu- 
lar classes  of  persons,  for  example,  the  books  of  attornies,  (3) 
they  may  derive  some  additional  weight  from  the  circum- 
stance, that  the  parties  would  be  expected  to  keep  books,  and 
to  produce  them  upon  notice. 

(Conformably  with  this  rule,    receipts   for  the   payment  of  Receipt*, 
money,  given  to  the  person  making  the   payment,    appear    to 
be  admissible,  after  the  death  of  the  receiver  of  the    money, 

ceipts  of  tithe  collectors.  Wynne  v.  decott,  7  Bing.  434.  It  would  seem 
Tjrwhit,  4  Barn.  &  Aid.  376.  Manning  probable  that  the  steward,  by  entering 
V.  Lechmere,  1  Atk.  453.  By  Lord  El-  an  assessment  of  a  fine,  without  stating 
lenborough,  in  Hingham  v.  Ridgway,  10  it  to  be  paid,  prejudiced  his  interest  by 
East,  116.  Harper  u.  Hrooke,  3  Wood-  supplying  evidence  of  an  obligation  on 
eson's  Lect.  332.  Vin.  Ab.  Ev,  A.  b.  himself  to  collect  the  fine.  But  then  the 
1.5.  Bullen  r.  Michel,  2  Pr.  413,  in  entry  would  merely  prove  the  fact  of  as- 
which  case  the  accounts  were  the  ac-  sessment,  which  wouli]  not  be  material, 
counts  of  the  reeve  of  an  abbey,  and  unless  tl>e  fine  were  paid.  in  Brett  v. 
Chief  .Justice  Gibbs  observed,  that  the  Beales,  1  M.  &  M.  418,  where  the  Ireas- 
chdrgiiig  side  was  against  the  interest  of  urer  of  a  corporation  had  returned  money 
the  bailifr.  He  seems  also  to  have  in  arrear,  the  entries  were  rejected,  be- 
thought, that  the  discharging  side  could  cause  he  had  not  charged  himself  witii 
also  have  been  evidence  as  part  of  the  the  receipt  of  the  money, 
the  same  account.  In  Finch  t).  Messing,  (2)  The  like  observations  apply  to  the 
cited  in  Short  D.Leigh,  2  Jac.  &  W.  cases  of  the  accounts  o!  public  ofiicers, 
464,  the  accounts  of  a  sequestrator  were  as  churchwardens.  Stead  v.  Ilutton,  4 
given    in    evidence,    which  contained  a  T.  R.  669. 

charge  and  discharge.     Bree  v.  Beck,   1  (3)   See    Warren    v.  Greenville    and 

Younge's  Ex.   C'a.   225,  239.     Doe  v.  Doe   v.  Robson,   infra.     Rowcroft   v. 

Tyler,  6  Bing.  562.  Bassett,    Peake's     Add.     Gases,     199. 

(1)  Dean  and  Chapter  of  Ely  v.  Cal-  Gale  v.  Packington,  M'CI.  k.  Y.  357. 


278 


Hearsay  Evidence. 


[Chap.   16. 


to  prove  the  fact  of  it's  having  been  received,  though  there  ex- 
ist no  privity  between  the  deceased  and  the  party  against 
whom  the  evidence  is  tendered.  In  the  case  of  Middleton  v. 
[  *314  ]  *Melton,  (1)  the  Judges  of  the  King's  Bench  were  of  this 
opinion,  though  the  decision  in  that  case  was  rested  upon 
other  grounds.  In  a  previous  case,  however,  of  Goss  v.  Wat- 
lington,  (2)  the  Court  of  Common  Pleas  appear  to  have  been 
of  a  different  opinion  upon  this  point,  under  similar  circum- 
stances. In  tithe  suits,  the  receipts  of  collectors  of  former  in- 
cumbents are  considered  very  strong  evidence  of  the  facts 
they  record.  (3) 
Ratebooks.  *The  occupation  of  premises  by  a  particular  individual  at  a 
[  *315  ]  certain  period  has  been  allowed  to  be  proved  by  entries  in 
a  land-tax-collector's  book,  stating  that  individual  to  have 
been  rated  for  the  premises  in  question,  and  to  have  paid  the 
rates,  on  the  ground,   that   the  entry  of  payment  was  made 


(1)  10  Barn.  &  Cress.  321.  In  H.ir- 
rison  v.  Blades,  3  Gamp.  45S,  Lord  El- 
Icnborough  said,  that  a  tax-gatlierer's 
receipts  would  be  evidence  after  his 
death  to  prove  who  was  the  occupier  of 
certain  premises.  It  is  said,  by  Scarlett, 
arg.  in  IJarker  v.  Ray,  2  Russ.  70,  that 
the  cqnstijnt  practice  of  Nisi  Prius,  shews 
that  receipts  by  persons  wlio  are  dead 
are  not  evidence  as  between  third  par- 
ties, that  money  was  paid.  And  see  an 
argument  in  Chambers  v.  Bernasconi,  1 
Cr.  &  J.  456,  that  receipts  of  deceased 
persons  are  only  evidence,  where  those 
persons  were  accountable  for  what  they 
received.  In  Harrison  v.  Blades,  3 
Camp.  458,  where  a  tax-gatherer's  re- 
ceipts were  rejected,  because  he  was  not 
dead,  but  only  ill  ;  Lord  Ellenborough 
appears  to  have  entertained  no  doubt, 
but  that  they  would  have  been  evidence 
to  prove  occupation,  after  the  tax-gath- 
erer's dealii,  see  Manning  v.  Lechniere, 
1  A'.k.  453.  In  Doe  v.  Vowles,  1  Mo. 
&  Rob.  161,  Littledale,  J.,  rejected  a 
deceased  tradesman's  bill,  for  repairs, 
with  a  receipt  thereon;  the  question  be- 
ing one  of  adverse  possession  between 
mortgagor  and  mortgagee,  and  the  re- 
ceipt came  from  the  papers  of  the  mort- 
gagee. Littledale,  J.,  said  that  the  ca- 
ses had  gone  quite  far  enough.  Receipts 
appear  to  be  much  less  objectionable  tes- 
timonies than  entries  in  private  books, 
from  the  circumstance  of  their  having 
been  given  to  persons  interested  to  pre- 
serve them  as  evidence  against  the  mak- 
ers. 

(2)  3  Br.  &  B.  138.  This  point, 
however,  was  not  very  material  in  the 
case  in  the  text,  as  the  Court  decided 
that  the  collector's  books  were  receiva- 
ble. The  Court  appear  to  have  direct- 
ed their  attention  solely  to  the  grounds 


on  which  the  declarations  of  agents  are 
receivable  or  not  against  their  principals. 
This  decision  as  to  the  receipts  was  ad- 
verted to  in  Middleton  v.  Mellon,  10 
Barn.  &  Cress.  328,  and  the  propriety 
of  it  doubted. 

(3)  These  receipts,  on  account  of  the 
want  of  privity,  cannot  perhaps  bo  strict- 
ly considered  as  in  the  nature  of  admis- 
sions ;  though  they  are  very  analagous 
to  some  cases,  in  which  jugdments  or  ad- 
missions are  admissible,  on  account  of  a 
privity  of  estate,  especially  as  a  judg- 
ment against  a  rector  or  vicar  would  be 
admissible  against  his  successor,  vide 
infra,  part  2.  The  receipts  are  made 
by  persons  in  eodemjure.  The  principal 
cases  respecting  tithe  receipts  are  Lake  v. 
Skinner,  Gw.  1931.  3  E.  &  Y.  976. 
.Tones  v.  Carriiigton,  1  Carr.  327,  497. 
Ekins  V.  Dormer,  3  Atk.  534.  Chap- 
man V.  Smith,  2  Ves.  511,  in  which 
two  latter  cases.  Lord  Hardvvicke  re- 
marks as  to  practice  of  parsons  ab- 
staining from  the  use  of  the  term  modug 
in  their  receipts;  and  the  like  observa- 
tions on  the  language  and  effect  of  re- 
ceipts will  be  found  in  Manby  r.  Lodge, 
9Pr.  231.  White  v.  Lisle,  4  Madd. 
214.  Dutlield  v.  Orrel,  6  Pr.  324. 
Deacle  v.  Hancock,  M'Clel.  85.  Tay- 
lor V.  Fox,  4  Wood,  322.  Chapman  v. 
Smith,  2  E.  &  Y.  141.  On  discrepan- 
cies between  early  and  late  receipts, 
Manby  v.  Lodge,  9  Pr.  231;  receipts  of 
churchwardens  for  a  tributary  modus, 
Atkins  u.  Drake,  1  M'Clel.  &  Y.  217. 
It  is  said  by  Baron  Wood,  in  Robinson 
«.  Williamson,  9  Pr.  136,  that  receipts 
are  stronger  evidence  than  vicar's  books, 
1  Younge's  Ex.  Ca.  165.  The  absence 
of  receipts  is  not  a  circumstance  of  great 
weight  against  the  existence  of  a  modus, 
see  Wooley  v.  Brownhill,  M'Clel.  335, 


Sect.  l.J 


Declarations  ao'ainst  Interest. 


279 


against  the  interest  of  the  collector.  (1)  In  Plaxton  v. 
Dare,  (2)  upon  a  question  whether  premises  were  situate  in 
a  particular  parish,  the  accounts  of  deceased  overseers,  in 
which  there  were  crosses  made  against  the  names  for  which 
the  tenants  of  the  premises  had  been  assessed,  were  held  to 
be   evidence    of  actual  payment   of  the  rates. 

Not  only  declarations  of  the  receipt  of  money,  but  declara- 
tions of  a  variety  of  descriptions,  made  against  interest,  have 
been  received  in  evidence.  (3)  Thus,  upon  an  issue  whether 
A.  B.  died  possessed  of  certain  farming  stock ;  it  has  been 
held,  that  evidence  might  be  given  of  a  conversation  in  which 
A.  B.  stated  that  she  had  retired  from  business,  and  had  giv- 
en up  her  farming  stock  to  her  son-in-law.  (4)  [a)      A  bill  of 


Right  to 
property. 


(1)  Doe  d.  Smith  v.  Cartwright,  R. 
&  M.  62.  It  would  seem  from  this 
case,  that  the  rate  alone  (though  of  tlie 
nature  of  public  documentary  evidence,) 
WPS  not  evidence  of  occupation;  and  see 
Harrison  v.  Blades,  3  Camp.  458,  tax- 
gatherer's  receipts. 

(2)  10  Barn.  &  Cress.  19,  vide  ib., 
as  to  the  necessity  of  proving  payment 
in  such  a  case.  It  was  said,  that  the 
making  of  crosses  was  a  common  mode 
of  denoting  payment. 

(.3)  See  tlie  cases  collected  in  the  note 
to  Barker  i-.  Ray,  2  Russ.  67.  See  also 
the  next  section  for  cases  respecting  in- 
dorsements of  payment  of  interest  upon 
bonds  and  notes. 

(4)  Ivatr.  Finch,  1  Taunt.  142.  On 
a  motion  for  a  new  trial,  it  appeared 
that  the  Judge  at  nisri  prius,  had  reject- 
ed the  evidence,  on  the  ground  that  the 


declaration  was  not  accompanied  by  any 
act  relative  to  the  manageinent  of  the 
farm.  It  would  seem  that  although  dec- 
larations accompanying  acts  may  be  ex- 
planatory of  the  acts,  they  do  not  de- 
rive additional  credit  from  that  circum- 
stance as  to  matters  totally  unconnected 
with  the  acts  which  they  accompany, 
except  so  far  as  they  may  be  thought 
more  deliberate.  Perhaps  the  case  may 
in  some  measure  be  considered  as  resting 
on  the  doctrine  of  admissions  on  account 
of  the  privity  between  the  lord  of  the 
manor,  and  his  tenant.  Chief  Justice 
Mansfield,  after  stating  that  the  admis- 
sion was  against  interest,  concludes  his 
judgment  by  saying,  "  It  ought,  <ftf»£- 
fore,  to  have  been  received;  because 
the  right  of  the  Lord  of  the  Manor  de- 
pended upon  her  title." 


(a)  Ivat  V.  Finch  related  to  a  personal  chattel  and  does  not  accord  with  the 
opinion  of  Lord  Ellenborough  who  tried  the  cause.  In  Bartleft  v.  Delprat,  4  ftlass. 
702  and  Clarke  u.  VVaite,  12  id.  439,  evidence  of  the  declarations  of  the  party  was 
rejected.  Spencer,  C.  J.,  5  J.  R.  412  says,  the  declarations  of  a  party  to  a  sale  or 
transfer,  going  to  destroy  and  take  away  the  vested  rights  of  another,  cannot  ex 
post  facto,  have  that  consequence,  nor  be  regarded  as  evidence  against  the  vendee 
or  assignee.  But  he  does  not  state  that  such  declarations  would  be  evidence,  if 
made  before,  or  if  made  in  athrmance  of  suchsale  or  transfer.  The  declarations  re- 
ceived in  evidence  in  Doe  v.  Roe,  1  J.  Cas.  402,  were  those  of  a  tenant,  while  in 
the  possession  and  occupancy  of  the  land  in  question,  slating  to  whom  the  same  be- 
longed.    See  the  observations  of  Weston,  J.,  3  (Jrcenl.   141. 

In  Binney  v.  Proprietors  of  common  lands  in  Hull,  5  Pick.  503,  the  declarations 
of  the  ancestor  were  admitted  to  prove  his  liability  to  maintain  a  certain  fence,  and 
thus  to  prove  the  liability  of  the  heir  to  maintain  it.     See  also  3  Pick.   284. 

In  Hale  v.  Smith,  6  Greenl.  41C,  it  was  held,  that  the  declarations  of  a  former 
vendee  were  admissible  in  a  contest  between  the  creditor  of  the  origin.il  vendor  and 
a  subsequent  vendee  to  show  that  the  original  conveyance  was  fraudulent.  The 
court  said  that  if  a  vendee's  title  may  be  alTected  (as  in  Bridge  v.  Kggleston,  14 
Mass.  245),  by  the  declarations  of  the  vendor  before  the  sale,  it  would  appear  at 
least  equally  clear  that  it  may  be  impaired  by  his  own  declarations;  especially  when 
such  vendee  is  the  person  under  whom  the  plaintilF claims,  and  Vi-ho  conveyed  the 
property  in  dispute  with  warranty.  The  court  cite  Jackson  v.  Bard,  4  J.  R.  230 v 
1  J.  R,  343. 


280 


Hearsay  Evidence. 


[Ch.   IG. 


l^ficlara- 
tions  Uy  oc- 
etijjiers. 


[  *316  J  *lading  signed  by  ix  master  of  a  vessel,  since  deceased,  for 
goods  to  be  delivered  to  a  consignee  or  his  assigns,  on  pay- 
ment of  freight,  has  been  held  to  be  admissible  evidence  of 
the  consignee  having  an  insurable  interest  in  the  goods.  (1) 

In  several  cases  the  declarations  have  been  made  by  tenants, 
where  they  have  stated  that  they  paid  rent  to  particular  per- 
sons. In  these  cases  the  declarations  have  been  considered 
as  made  against  interest,  inasmuch  as  possession  is  'prima  fa- 
cie evidence  of  a  seisin  in  fee,  and  therefore,  the  declaration 
of  the  possessor,  that  he  is  tenant  to  another  makes  against 
his  interest.  (2) 

Thus  in  Davies  v.  Pierre,  (3)  upon  a  question  whether  the 
[  *317  ]  *i)lace  in  dispute  was  parcel  of  a  particular  tenement,  the  de- 
clarations of  deceased  persons,  whilst  in  the  occupation  of 
the  place  in  dispute,  that  they  paid  rent  for  the  premises  to  a 
])articular  indiv^idual,  were  held  to  be  receivable  in  evidence. 
In   Peaceable  ^.  Watson,  {\)ii  was  held,  that,  in    order    to 


(1)  Huddow  I).  Parry,  3  Taunt.  303; 
see  the  opinions  of  the  Judges  in  thts 
course  of  the  argument.  In  this  case,  it 
iippeared,  on  further  inspection  of  the 
bill  of  lading,  that  it  contained  in  the 
margin,  the  words  "contents  unknown," 
and  it  was  considered  that,  by  the  inser- 
tion of  these  words,  the  master  could 
not  charge  himself  with  any  thing,  and 
would  not  be  accountable.  In  general, 
an  invoice  is  only  evidence  against  par- 
ties privy  to  the  contents.  Shendom  v. 
'rhompson,  1  St.  C.  316.  DicUen  v. 
Lodge,  1   St.  C.   226. 

(2)  By  Chief  .Fastice  Mansfield,  in 
Peaceable  v.  Watson,  4  Taunt.  16. 
Possession  is  prima  facie  evidence  of 
ownership,  and  a  tenant's  declaration  is 
evidence,  as  cutting  down  the  fee.  It 
would  seem  that  these  declarations  of  oc- 
cupiers were  admissible,  also,  as  explan- 
atory of  the  fact  of  occupation.  Doe  v. 
Pettett,  5  Barn.  &  Aid.  223.  By  Lord 
Tenterden,  though,  perhaps,  in  that  case 
the  declaration  of  the  occupier  went  to 
cut  down  the  fee.  And  see  the  argu- 
ment of  counsel  in  Chambers  v.  Bernas- 
coni,  1  Cr.  &  J.  4.57.  In  Garnem  v. 
Barnard,  Anstr.  298.  Macdonald,  C.  B  , 
seems  to  have  considered  that  the  admis- 
sibility of  the  declarations  of  deceased 
persons  was  chiefly  confined  to  the  case 
of  tenants  making  statements  concerning 
the  nature  of  their  holdings. 

(3)  2  T.  R.  53,  Ashurst,  J.,  decided 
the  case  on  the  ground,  that  evidence 
had  been  rejected,  of  the  occupier  hav- 
ing in  one  instance  prevented  a  person 
from  cutting  rushes,  threatening  at  the 
same  time,  to  tell  (his  landlord)  the  in- 
dividaal    in    question,   and    having    ia 


another  seized  rushes  cut  upon  the  place 
in  dispute,  saying  at  the  same  time  that 
they  belonged  to  that  individual.     Mr.  J. 
Buller,  the  only  other  Judge  who  deliv- 
ered an  opinion,  said,  the  question,  rela- 
tive to  the  tenant  declaring  that  he  paid 
rent    for   the  premises  in   question,  had 
been  determined  by  the  cases    of  Hollo - 
vvay  V    Rakes,  which  he  cited  from  MS., 
and   Doe  v.   Williams,  Cowp.  621.  Mr. 
J.  Buller,  did   not  advert   to  the  particu- 
lar terms  of  the  declarations  in  Davies  v. 
Pierce,  or  to  the  circumstance  that  they 
accompanied    act.?    done.     The  case    of 
IloHoway  V.  Rakes  would  seem  to  have 
been  a  case  of  admissions.     In  the  case 
of   Doe  V.    Williams,  upon  a  question, 
wheiher   A.   B.  deceased,  was  seized  of 
prfmiscs  at  the  time  of  a  fine  levied,  a 
conversation  between    him    and  a  living 
tenant  was  given  in  evidence,  wherein  the 
one  adrnitted  the  payment  and  the  other 
the  receipt  of  rent,  'i'he  jury  and  the  Court 
decided,  upon  the  general  merits,  against 
the  party  prodticiug  evidence  of  this  con- 
versation, and  the  point  of  the  admissibil- 
ity of  the  evidence  appears  to  have  un- 
dergone   but    little    consideration.       In 
Strode    v.    Winchester,    1    Dick.     397, 
parol  evidence  of  the  declarations  of  a 
devisee  were  admitted,  to  prove  her  be- 
ing only  a  trustee.     In  Walker «.  Broad- 
stock,  1  Esp.  458,  the  declaration  of  an 
occcpier,  that  his  cattle   had   been    im- 
pounded in  a  particular  place  was  receiv- 
ed.    And  it   was  said,  that  the  declara- 
tions   of    occupiers    against   their     own 
rights  were  admissible.     And  see  Doe  v. 
Green  Gow.  227. 

(1)4  Taunt.  16,  than  by  such  acts. 


Sect.  1.]  Declarations  against  Interest.  281 

prove  seisin  of  certain  premises  in  a  particular  individual,  it 
was  competent  to  ask  a  witness,  whether  a  deceased  person 
iti  occupation  of  the  premises  had  been  heard  to  say,  of  whom 
he  rented  them.  In  Doe  d.  Baggayley  v.  Jojies,  (2)  in  an 
action  of  ejectment  brought  for  the  recovery  of  a  garden, 
where  the  question  was  whether  the  ground  in  dispute  was 
parcel  of  certain  freehold  property,  or  of  a  certain  copyhold 
tenement,  a  paper  signed  by  a  deceased  owner  of  the  copyhold 
tenement,  who  was  also  in  the  occupation  of  the  ground  in 
dispute,  in  which  he  stated  that  no  part  of  the  garden  was 
copyhold,  and  that  he  paid  rent  for  it,  was  held  to  be  admissi- 
ble evidence  to  prove  that  the  garden  was  not  copyhold.  JiOrd 
Ellenborough  observed,  that  the  representation  was  against 
the  interest  of  the  maker  of  it,  as  he  charged  himself  with  the 
};ayment  of  rent,  to  which  he  would  not  have  been  liable, 
had  the  garden  been  parcel  of  his  own  tenement.  (3)  (a) 

*ln  the  case  of  Barker  v.  Ray,  the  declarations  of  a  wife  [  *318  ] 
during  coverture  were  adduced,  after  the  death  of  her  hus- 
band ;  they  were  to  the  effect  that  her  husband  was  not  seis- 
ed in  fee  of  certain  premises  in  dispute,  of  which  he  was  then 
in  possession ;  and  that  upon  a  certain  event  they  were  to  go 
over  to  another  branch  of  the  family.  These  declarations 
were  rejected  at  nisi  prius,  and  it    was   contended,  upon  ap- 

(2)  1   Camp.  367.  it  on  the  broad  principle  stateil  by  Lord 

(3)  In  the  ca^e  of  Walker  v.  Brad-  Kenyon;  for  one  of  the  declarants  vva<f 
stock,  1  Esp.  458,  it  was  stated  by  Lord  alive.  The  question  was  concerning  the 
Keiiyon,  that  the  declarations  of  occupi-  existence  of  a  prescriptive  right  of  com- 
ers were  evidence  against  their  own  rnon,  and  a  deceased  occupier  of  the 
rights.  This  case  may  be  supported  on  plaintiff's  property  had,  during  his  occu- 
ihe  ground  of  the  declarations  of  occu-  pation,  said,  that  his  cattle  had  been  im- 
piers  being  admissible  as  explanatory  of  pounded  on  the  place  in  di-pute;  and  a 
the  fact  of  possession,  or,  perhaps,  more  living  occupier  had,  during  his  enjoy- 
satisfactorily  on  the  ground  of  the  admis-  ment,  declared,  he  believed  that  no  right 
sions  being  made  by  privies  in  estaie,  of  common  belonged  to  the  property. 
vide  infra;  it  seems  difficult  to  support 

(a)  The  declarations  of  a  party  holding  adversely  are  never  received  to  support 
the  title  under  which  he  claims;  tlinugh  they  may  be  received  when  against  it.  1 
.(.  R.  343;  4  id.  230;  2  Conn.  467;  7  id.  319;  7  Wheat.  111.  The  following 
cases  decide  that  the  declarations  and  admissions  of  a  former  owner  and  occupier 
are  evidence,  and  as  such  may  always  be  given  against  the  parly  who  made  ihem, 
or  those  claiming  under  him,  without  regard  lo  the  party's  being  alive  or  dead, 
within  or  without  the  reach  of  the  process  of  the  court.  (libblehouse  v.  Strong,  3 
Kawlo,  437  and  cases  there  cited;   I  .1.  II.  343;   4  id.  229. 

The  declarations  of  one  having  the  legal  estate,  was  hold  to  be  admissible  to 
prove  that  he  held  as  trustee  for  another,  who  paid  the  purchase  money,  against 
those  who  claimed  under  him,  although  the  declarant  was  in  full  life,  within  the 
process  of  the  court  and  cnm[)etent  to  testily,  (iibblehouse  v.  Strong,  supra — rit- 
ins;  1  .F.  H.  343;  4  id.  230;  3  H.  &  J.  487;  7  id.  147;  7  VVh.  I{.  II  1;  2  Conn. 
467,  7  id.  319;  2  Dall.  93;  10  S.  &,  R.  G3;  4  id.  174;  14  id.  137;  4  Mass.  702; 
12  id.  440,  1  ;  and  repudiating  the  cases  of  Duckham  v  VV^allis,  5  Ksp.  R.  252  and 
Hurd  1'.  West,  7  Cowen,  752.     See  9  Wend.  39;  8  id.  480;    12  id.  142. 

The  decl.ir.ition  of  a  per.snn  under  whom  the  party  claims,  is  admissible  for  ih© 
adverse  party  to  uphold  or  injpeach  a  conveyance.  6  Taige'ii  Cii.  li.  323;  14 
Wctid.  619. 

36 


282  Hearsay  Evidence.  [Ch.   16. 

peal  to  the  Lord  Chancellor,  that  the  declarations  were  against 
interest,  as  their  tendency,  by  shewing  that  the  husband  was 
not  seised  in  fee,  was  to  prejudice  any  claim  that  the  wife 
might  make  to  dower.  The  Lord  Chancellor  refused  a  new 
trial,  not  expressing  any  decided  opinion  as  to  the  admissibili- 
ty of  the  evidence.  (1) 

In  the  case  of  How  d.  Brune  v.  Raiolins,  (2)  upon  a  ques- 
tion whether  the  lease  of  a  tenant  for  life,  having  a  limited 
power  of  leasing,  was  void  in  consequence  of  the  ancient  rent 
not  being  reserved,  the  particulars  of  a  certain  estate  were  re- 
ceived in  evidence  under  the  following  circumstances.  The 
contents  of  the  paper  containing  the  particulars  shewed,  that 
it  had  been  written  by  a  person  having  an  intimate  knowledge 
of  the  property  in  question,  and  who  was  in  the  confidential 
employ  of  the  person  to  whom  the  paper  was  addressed.  The 
paper  was  in  some  degree  recognised  as  authentic  by  the  person 
to  whom  it  was  addressed,  by  his  indorsement  written  upon  it 
"  from  Hobart  a  particular  of  my  estate  in  Cornwall."  It 
shewed  the  existing  rent  of  a  particular  tenement,  the  ancient 
rent  of  which  was  the  subject  in  dispute.  The  paper  was 
addressed  to  the  person  who  was  tenant  for  life  of  the  prop- 
r  *319  1  erty,  with  a  *leasing  power  upon  condition  of  reserving  the 
ancient  rent,  being  the  like  power  to  that  under  which  the 
lease  in  issue  had  been  made.  The  paper  was  preserved  among 
the  muniments  of  the  estate  by  the  person  to  whom  it  was 
addressed,  and  from  him  it  came  to  the  tenant  for  life  whose 
lease  was  in  issue,  and  upon  his  death  it  passed  with  the  oth- 
er muniments  of  the  estate  to  the  succeeding  proprietor,  who 
questioned  the  validity  of  the  lease.  Lord  Ellenborough,  in 
delivering  the  judgment  of  the  Court,  said,  the  contents  of 
the  paper  were  adverse  to  the  tenant  for  life  to  whom  it  was 
addressed,  and  who  had  authenticated  it  and  preserved  it 
among  his  muniments, — for  it  diminished  his  interest  in  the 
renewal,  in  the  same  proportion  as  it  raised  the  rent  to  be  re- 
served,— and  it  could  not  have  been  evidence  in  his  favour ; 
he  could  not,  therefore,  have  had  any  undue  motive  for  pre- 
serving it  :  consequently  it  was  proper  evidence,  to  be  left  to 
the  jury,  of  the  amount  of  the  ancient  rent  received. 

In  the  late  case  of  Came  v.  Needle^  (1)  it    was   considered 

(1)  2  R«s9.  77.  It  was  contended  on  been  qaite  clear.  It  is  presumed,  this 
the  otlrer  hand,  that  the  wife  did  not  ap-  was  said  with  reference  to  the  doctrine 
pear  to  have  had  a  competent  knowledge  of  admissions  by  parties  in  privity.  In 
of  her  husband's  title;  nor  was  it  her  da-  the  judgment,  a  broader  ground  is  taken 
ty  to  know  it,  and  that  she  had  no  acta-  for  the  admission  of  the  evidence,  viz. 
ail  title  to  dower.  peculiar  means  of  knowledge,  and  an  ab- 

(2)  7  East,  279.     Lord  Ellenborough  sence  of  interest. 

observed,  that  if  the  tenant  for  life  who         (1)   1  Bing.  N.  C.   430,  and  see  by 

disputed  the  lease,  had  derived  his  title  Lord  Lyndhurst,  in  Chambers  v.  Bernas- 

f'rom  the  person  by  whom  the  indorse-  coni,  1  Cr.  &  J.  456. 
mtat  was  made,  the  ase  would  have 


Sect.  l.J  Declarations  against  Interest.  '^83 

an  established  doctrine  of  evidence,  that  declarations  by  a 
person  in  possession  of  premises,  tending  to  cut  down  his  own 
title,  (as,  in  that  case,  by  stating  the  party  under  whom  he 
held,)  were  admissible  in  evidence.  In  Crease  v.  Barrett,  (2) 
it  was  observed,  that  an  occupier,  proved  to  be  in  possession 
of  a  piece  of  land,  is  priyna  facie  presumed  to  be  owner  in  fee, 
and  his  declaration  is  receivable  in  evidence,  when  it  shews 
that  he  was  only  tenant  for  life  or  years,  (a) 

But  the  declarations  of  a  person  who  has  parted  with  his  Occupation 
interest  in  land,  (as,  by  executing  a  settlement,)  cannot  be  ad- 
duced for  the  purpose  of  impairing  the   rights  of  persons  ac- 
quired under  the  settlement,  (3)  merely  because    they  affect 
*the  title  to  the  land.     It  seems  necessary,  in  order  to    make  [  *320  ] 
the  declaration  of  a  deceased  person    admissible   as    being  an  Proof  of  oc- 
occupier  of  land,  to  prove  the  fact  of  his  occupation  ;  it  is  not  "^"P*'""" 
enough  that  the  declaration  purport  to  be  against  the    interest 
of  the  maker.  (1) 

It  would  seem  not  to  be  sufficient,  that  in  one  or  more  points  Balance  of 
ot  View  a  declaration  may  be  against  interest,  if  it  appear  up- 
on the  whole,  that  the  interest  of  the  declarant  would  be 
rather  promoted  than  impaired  by  the  declaration.  Thus,  in 
Outrani  v.  Morewood,  (2)  in  an  action  of  trespass  for  break- 
ing and  entering  a  particular  close,  it  became  material  to  iden- 
tify the  close,  concerning  the  right  of  digging  coals  in  which 
the  dispute  arose,  as  being  parcel  of  an  estase,  out  of  Avhich 
certain  rents  had  been  reserved  in  an  ancient  conveyance. 
The  party  who  sought  to  do  this,  produced  the  books  of  a 
person  under  \vhom  he  derived  title  to  those  ancient  rents,  in 
which  that  person  acknowledged  the  receipt  of  rents  from  the 
person,  who  had  conveyed  the  close  to  the  plaintiffs,  which 
rents  corresponded  with  the  rents  that  had  been  anciently  re- 
served, (3)     This  evidence  was  held  to  be  inadmissible  by  the 

(2)  1  Cr.  M.  &  R.  931.  .575,     This  principle  does  not  appear  to 

(3)  Doe  V.  Webber,  1  A.  &  E.  740,  have  been  uniformly  acted  upon;  see  the 
and  see  the  cases  of  declaration's  by  per-  cases  collected  in  Barker  v.  Ray,  2  Russ. 
«ons  whilst  in  possession  of  bills  of  ex-  67  n. 

change.  Infra,  Cli.  on  Admissions.  (2)  5  T.  R.  121. 
In  Doe  V.  Webber,  the  declaration  (3)  The  justification  was  that  of  hav- 
would  appear  to  have  been  against  inter-  ing  a  right  to  dig  coiils  in  the  locus  in 
erest,  independently  of  it's  afFeciing  the  quo,  and  the  ancient  conveyance  reserv- 
tiile  to  the  land;  the  evidence  was,  how-  ed  coals  as  well  as  rents;  the  defend- 
ever,  rejected.  ant  derived  title  to  the  rents,  but  not  to 
(1)  Crease  r.  T>arret,  1  Cr.  M.  &  R.  the  coals,  from  the  person  whose  book 
931.  Slight  evidence,  as  of  felling  tinrj-  was  produced, 
ber,  has  been  held  sufficient.     3  C.  &  P. 

(a)  The  adnnissions  in  the  recital  contained  in  a  deed  of  one  of  the  lessors,  is  evi- 
dence in  the  cause  against  all  of  them;  for  he  could  not  be  called  as  a  witness,  and 
thev  have  a  community  of  interest.  See  Jackson  v.  M'Vey,  18  J.  R.  330;  Brandt 
V.  Klein,  17  id.  335. 

The  declarations  of  a  possessor  of  land  that  his  possossion  is  not  adverse  to  the 
demandant's  title  who  doe.s  not  claim  under  him,  are  not  admissible;  being  merely 
hearsay  evidence.     Allen  v.  Horton,  20  Pick.  458. 


284  Hearsay  Evidence.  [Cli.   10. 

Court  of  King's  Bench.  It  may  be  observed,  even  supposing 
according  to  the  authorities  that  there  was  reasonable  proba- 
bihty  of  the  entry  being  used  against  the  maker,  for  the  pur- 
pose of  proving  the  payment,  still  if  it  could  be  used  by  the 
representative  of  the  maker  to  prove  title  to  the  land,  the  en- 
try might,  upon  the  whole,  be  in  favour  of  the  maker's  inter- 
est. (4) 

r  *321  1  *But  entries  of  receipt  of  rent,  made  by  a  deceased  execu- 
tor, who  had  an  interest  in  land  which  was  claimed,  have 
been  held  admissible  evidence  for  a  person  claiming  the  land 
under  him,  where  the  rent  has  been  received  and  accounted 
for  by  the  deceased  in  his  capacity  of  executor,  the  entries  not 
having  been  made  by  him  in  his  character  of  landlord.  (1) 

Where  certain  entries  of  receipt  of  money,  made  by  proc- 
tors, who  were  members  of  an  ecclesiastical  corporation,  were 
adduced  in  evidence  by  that  corporation,  in  a  suit  commenced 
by  them  for  tithes,  it  was  held  that  the  proctors  were  interest- 
ed against  the  entries,  because  they  charged  themselves  with 
the  whole  amount,  whereas  as  members  of  the  corporation 
they  had  only  an  interest  in  a  proportionate  share  of  the  mon- 
ies receivable.  (2) 

j'^.^f"^/"''      It  frequently  happens  that  an  entry  purports,   in   the    first 

"  '    place,  to  charge  a  deceased  person,  and  afterwards  to  discharge 

him.     In  such  a  case  the    entry  cannot  be    used  against  the 

[  *322  ]  maker  of  it,  unless  the  whole  is  read  in  evidence.  *But  still 
if  the  whole  were  read,  the  jury  would  most    probably  attrib- 

(4)  The  Court  does  not  appear  to  have  peeled  of  wrongly  setting  down  what 
treated  this  case  as  one  of  a  balance  of  ihey  had  not  received,  in  order  that  ihey 
interest,  though  in  fact  it  was  so,  ac-  might,  by  charging  themselves  with  24/. 
cording  to  the  numerous  authorities,  in  receive  1/.  back  again?"  It  may  be 
which  private  memoranda,  containing  re-  observed,  however,  that  the  eU'ect  of 
ceipts  of  money,  have  been  received  in  the  evidence  was  to  make  the  24/  paya- 
evidence.  Nor  does  the  Court  appear  ble  annually  in  perjjetuum.  And  it 
to  have  considered,  whether  the  evidence  would  be  the  interest  of  the  corporation 
could  be  received  as  a  contemporary  en-  to  connive  at  one  of  their  body  fabrica- 
try  in  the  course  of  business,  nor  wheth-  ting  such  entries;  in  which  case,  lie 
er  the  book  would  have  been  admissible,  would  receive  no  real  prejudice,  but 
if  produced  by  a  p^rty  not  claiming  un-  periiaps  an  actual  benefit,  and  the  perma- 
der  the  person  making  the  entries.  The  nent  interests  of  the  body  would  be  pro- 
case  is  certainly  distinguishable  from  moted.  But  the  entries  could  not  be 
most  of  the  former  decisions,  on  the  used  during  the  life  of  the  proctor  mak- 
ground,  that  the  entries  7?ji^A/ have  pro-  ing  them,  and  his  personal  representa- 
moted  the  interest  of  persons  claiming  tives  would  have  no  interest  after  his 
under  the  makers  of  them,  though,  in  death.  Fi<Ze  f6.,  as  to  the  mode  of  al- 
some  of  the  preceding  cases,  this  view  lowance  of  steward's  accounts.  That 
of  the  subject  has  Ijeen  overlooked,  bursar's  books  have  been  received.  An- 
The  Court  appear  to  have  directed  their  on.  Lord  Raym.  745.  Per  Holt,  in 
attention  principally  to  the  distinguishing  Smart  v.  Williams,  Camp.  249.  12 
of  the  case,  from  the  decisions  respect-  Vin.  88.  The  general  rule  is,  that  cor- 
ing hearsay  evidence  of  general  rights.  poration  books  are  not  evidence  for  the 

(1)  9  IJing.  690.  corporation,  3  B.  &  A.  142;  2  B.  &  A. 

(2)  Short   t).    Lee.  2   Jac.    &  Walk,  189;  4  Russ.  222;    1  M.  M.  417.     The 
464,  and  a  MS.  ruling  of  Lord  Ellenbor-  case  of  Marriage  v.   Lawrence,  3  B.  & 
ough   there   cited.     The   Master  of  the  A.  142,  was  an  entry  of  payment. 
Rolls  asks,  "  Could  the  proctors  he  sus- 


Sect.   l.J 


Declaj'ations  a^-aiiist  Interest. 


2S5 


Clfiriral 
books. 


ute  greater  weight  to  the  part  which  was  against  the  interest  of 
the  maker,  than  to  that  which  was  in  his  favour.  (1)  In  several 
of  the  cases  which  have  been  cited,  the  entry  consisted  of  a 
memorandum  of  payment  for  work  or  services  performed, 
and  therefore  may  be  said  to  have  been,  to  a  certain  extent, 
in  favour  of  the  person  making  the  entry. 

There  is  a  very  remarkable  class  of  cases,  according  to 
which,  entries,  made  by  a  deceased  parson,  of  the  receipt  of 
ecclesiastical  dues,  have  been  received  in  favour  of  parties 
claiming  the  same  interest  as  the  maker  of  the  entries.  Thus, 
the  books  of  a  deceased  rector  or  vicar  have  been  frequently 
admitted  as  evidence  for  his  successor.  (2)  After  it  has  been 
determined,  that  evidence  may  be  admitted  of  receipts  of 
payment,  entered  in  private  books  by  persons  who  are  not  o- 
bliged  to  keep  such  books,  or  to  account  to  any  one  for  the 
sums  they  receive,  it  does  not  seem  any  infringement  of  prin- 
ciple to  admit  evidence  of  rectors'  or  vicars'  books.  For  the 
entries  cannot  be  used  by  the  parsons  themselves,  and  there 
is  no  legal  privity  of  interest  between  them  and  their  succes- 
sors. (3)     *General  observations  have  been  occasionally  used  [  *323  ] 


(1)  Vide  supra,  p.  312,  n.  1.  Doe  v. 
Tyler,  6  Bing.  .562.  In  a  recent  case, 
a  person  deceased  executed  a  feoffment, 
in  which  was  recited,  that  he  was  in- 
debted to  another  in  a  certain  amount, 
and  that  the  feoffment  was  made  in  con- 
sideration of  the  debt.  A  discussion 
arose,  whether  proof  of  the  execution  of 
the  feoffment  afforded  evidence  of  the 
existence  of  the  debt.  It  was  contend- 
ed, that  the  statement  was  not  upon  the 
whole  against  interest;  the  point  was  not 
determined. 

(2)  Armstrong  v.  Hewitt,  4  Pr.  216. 
Entries  of  payments  for  tithe  hay:  the 
books  are  spoUen  of  by  the  Court  as 
strong  evidence.  Parsons  v.  Bellamy,  4 
Pr.  190,  where  the  niemorandum  con- 
tained a  long  detail  of  fact?  incident  to  a 
receipt  of  payment  of  a  demand  with 
costs,  and  the  ('ourt  said  that  the  mem- 
orandum was  admissible,  because  it  had 
the  effect  of  making  the  vicar  charge 
himself  with  the  receipt  of  money. 
Walker  v.  llolman,  2  Price,  171,  where 
the  receipts  showed  that  the  money  pay- 
ments were  regulated  by  the  poors'  rate. 
Perigal  v.  Nicholson,  Wightvv.  63, 
where  a  rector's  entry  in  a  parish  regis- 
ter was  received.  The  entry  was  not  of 
the  receipt  of  money,  but  it  was  consid- 
ered as  abridging  the  vicar's  rights,  be- 
ing a  stnteiiicnt  of  moduses  due.  Lord 
Arundel's  case,  12  Yin.  Ab.  235,  pi.  8. 
In  Drake  v.  Smith,  1  Pr.  369,  receipts 
of  lithe-money  signed  by  a  vicar,  in  an 


entry  purporting  to  be  a  terrier,  contained 
in  a  book  kept  in  the  parish  chest.  The 
evidence  appears  to  have  been  admitted 
principally  on  the  ground  of  the  credit 
due  to  public  books.  Vide  infra,  part 
2. 

(3)  There  is  no  legal  privity  of  inter- 
est; but  in  point  of  fact,  commonly  a 
strong  leaning  in  favour  of  the  rights  of 
the  church,  and  often  a  disposition  to 
state  those  rights  most  favorably  for  them- 
selves(as  indeed  may  be  saidof  all  declar- 
ants) in  their  own  books, which  they  can- 
not themselves  use, but  which  by  accident 
might  be  used  against  them.  It  is  rare, 
for  example,  to  find  a  payment  set  down 
as  for  a  modus,  in  the  books  of  incum- 
bents. In  Parsons  v.  Bellamy,  4  Pr. 
190,  the  Chief  Baron  says,  "as  to  vicarg 
making  evidence  for  their  successors, 
that  is  what  I  cannot  listen  to.  This 
Court  knows  they  do  not  do  so,  and  the 
books  of  a  vicar  are  as  good  evidence  as 
the  books  of  a  steward."  In  Pobinson 
V.  Williamson,  9  Pr.  136,  it  was  said  by 
Baron  \Vood,  that  vicar's  books  whicli 
are  made  by,  and  remain  in  tlie  power 
of  the  party  himself,  are  liable  to  a  sus- 
picion, which  cannot  attach  to  receipts, 
which  are  made  by  the  person  against 
whom  they  are  to  be  used.  Although 
there  be  no  privity  between  an  incum- 
bent and  his  successor,  yet  they  stand  in 
pari  jure;  and  in  the  case  of  admissions 
and  judgments,  which  are  only  evidence 
against  parties  and  privies,  successive  in- 


2SG 


Hearsay  Evidence. 


[Ch.   16. 


respecting  the  receipt  of  rectors'  or  vicars'  books,  which  might 
be  supposed  to  authorize  the  admission  of  any  kind  of  state- 
ment contained  in  them.  But  such  books  are  not  admissible, 
except  where  the  entries  contain  receipts  of  money  or  eccle- 
siastical dues,  or  are  otherwise  apparently  prejudicial  to  the 
interests  of  the  makers,  in  the  manner  in  which  entries  are  so 
considered  in  analogous  cases. 
[  *324  ]  *The  entry  of  a  deceased  lessee  of  an  impropriate  rectory, 
whose  interest  had  expired,  has  been  held  to  be  receivable  in 
evidence.  ( 1 )  And  it  is  obvious,  that  the  entries  of  collect- 
ors of  tithes  stand  upon  the  same  footing  as  those  of  other  re- 
ceivers andbailifls.  (2) 

According  to  some  authorities,  though  not  of  very  great 
weight,  the  doctrine,  according  to  which  entries  in  rectors'  or 
vicars'  books  have  been  held  to  be  admissible  in  evidence,  has 
been  extended,  by  a  supposed  analogy,  to  the  case  of  the  books 
of  a  lay  impropriator.  (3)      The   analogy,    however,    entirely 


Impropria 
tor's  book 


cumbents  are,  as  far  ns  concerns  the  ad- 
missibility of  the  evidence  (though  not 
lor  the  purpose  of  estoppel)  regarded  as 
privies,  vide  iiifrn,  part  2.  See  by 
Tindal,  Ch.  .!.,  in  Madison  v.  Nuttal,  6 
Uing.  226.  The  admission,  however, 
of  the  books  of  rectors  and  vicars  has 
been  thought  an  anomaly  in  the  law  of 
evidence,  and  various  gronnds  have  been 
assigned  for  it — such,  as  the  peculiar  na- 
ture of  tithes,  the  protection  due  to  the 
clergy,  and  the  cursus  scacearii.  See 
by  the  Master  of  the  Rolls,  in  Short  v. 
Lee,  2  Jac.  &  Walk.  464.  By  Lord 
Kenyon,  in  Outram  v.  Morevvood,  5  T. 
11.  123.  By  Baron  Wood,  in  Perigal  v. 
Nicholson,  Wightw.  63.  By  Price,  B., 
in  \A  oodnortli  v.  Lord  Cobham,  2  Gwill. 
653.  By  King,  C.  J.  Vin.  Ab.  Ev.  T. 
b.  73.  By  Lord  Ilardwicke,  2  Ves.  43, 
the  first  trial  in  the  case  of  Le  Gros  r. 
Levemore,  Gw.  59.  1  E.  &  Y.  521. 
Lord  Ellenborough,  in  Roe  v.  Raw- 
lins, 7  East,  290,  puts  the  admissibility 
of  vicar's  books  simply  on  tlie  ground 
of  absence  of  inteiest.  In  Short  v.  Lee, 
2  Jac.  &  W.  464,  The  Master  of  the 
Rolls  refers  to  the  analogous  decisions 
respecting  prescriptions  in  non  deciinan- 
do,  when  set  up  against  lay  impropria- 
tors. In  Glynn  v.  the  Bank  of  England, 
2  Ves.  43,  Lord  Hardwicke,  after  ob- 
serving that  the  decisions  in  the  case  of 
rector's  books  went  a  great  way,  lays 
down  a  very  broad  principle  for  their 
admission,  "  That  the  person  making 
these  entries,  must  know,  that  they  can- 
not benefit  himself,  or  his  property,  his 
representatives  having  nothing  to  do 
with  the  living,  but  his  successor,  who 
stands  indifferent  to   him.  and  therefore, 


that  it  is  not  to  be  presumed  that  false  en- 
tries would  be  made  by  him  for  his  suc- 
cessor.' But  it  would  seem,  at  least 
according  to  the  doctrine  of  the  Courts 
in  analogous  cases,  that  the  circumstance 
of  the  deelaration  being  a£;ainst  inter- 
est, was  essential  to  guarantee  it's  accu- 
racy, if  not  it's  fidelity. 

(1)  Illingworthr.  Leigh,  Gwill.  1615. 
3  E.  Sc  Y.  1385.  Apparently  on  the 
same  principle  as  that  according  to 
which  rectors'  books  are  received,  name- 
ly, that  he  had  no  privity  of  interest 
with  any  succeeding  tenant,  and  the  en- 
try could  nut  have  been  used  for  himself 
or  hia  assignee.  This  doctrine,  however, 
introduces  a  new  qualfication  of  the 
rule,  viz.  that  the  entry  would  not  be 
evidence  for  the  assignee  or  representa- 
tives of  the  tenant,  after  his  death  and 
during  the  continuance  of  his  term.  It 
does  not  satisfactorily  appear,  that  the 
privity  between  the  tenaiit  and  his  lessor 
ought  to  have  been  disregarded  in  lhi« 
case  ;  there  was  at  least,  a  temptatioa 
for  connivance  between  them. 

(2)  Jones  v  Waller,  Gwill.  847. 
Short  V.  Lee,  2  Jac.  &  W.  490.  Woodr 
nooth  V.  Lord  Cobham,  Bumb.  ISO. 
The  receiver  of  a  lay  impropriator. — -. 
Bullen  V.  Mitchell,  2  Pr.  399,  accounts 
of  the  reeve  of  an  abbey.  Morgan  v. 
Tyler,  cited  in  Short  v.  Lee,  2  Jac.  & 
W.  464,  accounts  of  bailiffs  of  New 
College,  Oxford.  Finch  v.  Messing,  ci- 
ted ibid. 

(3)  Anon.  Bumb.  46,  a  demand 
for  mortuaries.  Anon.  Vin.  Abr.  Ev. 
T.  b.  73,  T.  b.  117,  see  observations  or^ 
these  cases  by  the  Master  of  the  Roll.i 
in  Short  r,  Lee,  2  Jac.   &  W.    464.     It 


*325 


Sect,   l.j  Declarations  against  Interest.  287 

fails,  so  far  as  the  doctrine  in  question  inay  be  considered  as 
depending  on  the  circumstance,  that  the  entries  are  against  in- 
terest ;  inasmuch  as  they  are  available  for  the  representatives 
of  the  party  making  them.  (4)  In  the  case  of  Short  v. 
i>ee,  (5)  the  Master  of  the  Rolls  was  of  opinion,  that  entries 
in  the  books  of  an  ecclesiastical  corporation  entitled  to  a  rec- 
tory were  admissible  evidence  for  the  corporation  in  suits  for 
tithes  brought  by  them. 

*ln  the  cases  which  have  been  decided,  it  will   have  been  ye^'-.a'  <^ec- 

,,,,,.  .  .  .  laralmus 

noticed,  that  the  declarations  have  m  most  instances  consisted 
ol  memoranda  or  entries  ;  but  from  several  of  the  examples  it 
may  be  collected,  that  verbal  declarations  are  admissible, 
though  unaccompanied  by  any  writing  or  by  any  act  done.  (I) 
Where,  indeed,  declarations  against  interest  accompany  acts, 
they  are  frequently  admissible  without  reference  to  the  cir-  . 
cumstance  of  their  being  contrary  to  interest.  (2) 

It  is  a  question  of  considerable  importance,   how  far  declar-  ^^'^^  "'"'""- 
ations  against  interest  are  receivable  in  respect  of  matters  form-  ceciing  i'n- 
ing  a  part  of  the  declarations,  but  not  in  themselves    aflecting  ^'^'■"^• 
the  interest  of  the  declarant.     Where  declarations  of  deceas- 
ed persons  acknowledging  the    receipt    of  money  have   been 
admitted,  it  appears  that  they  have  often  been  admitted  as  ev- 
idence, not  merely  of  the  fact  of  the  deceased  having  receiv- 
ed the  money,  but  also  of  the  circumstances  stated  as  the  oc- 
casion of  the    payment.  (3)     In    Warren  v.    G}-ee7iviUc,  (4) 

has  been  suggested,  ib.  that  the  cases  in  of    forbearance.       The    declarations    in 

Buiubury   and  Viner   relate  to  the   same  Davies  v.  Pierce,  2  T.  R.  53,  supra,  p. 

tjuil,  viz.  the  case  in   Bumb.    is  the   re-  316,  might  appear    to  be    admissible   as 

port  of  the  trial  at  nisi  priiis,  and    the  part  of  the  res  geatcB. 
case  in  Viner  is  a  note  of  the  hearing  in         (3)  See  the  cases  collected  in  the  note 

the  Exchequer.  to  Barker  v.  Ray,  2  Russ.  67. 

(4)  They  fall  precisely  within  the  (4)  2  Str  1129.  Independent  of 
rule  laid  down  in  Outram  v.  Morewood,  the  credit  due  to  the  collateral  statement, 
supra,  p.   320.  there  was  a  presumption  that  the  surren- 

(5)  2  Jac.  &  W.  464.  The  Master  der  must  have  been  made  before  the 
of  the  Rolls  expressed  himself  strongly  money  was  paid.  See  observations  on 
in  favor  of  another  ground,  which  was  this  case  by  Lord  Ellenborough,  in 
sufficient  for  the  admission  of  the  evi-  Ilingham  v.  Ridgway,  10  East,  117. 
dence,  vide  supra,  p.  321.  In  Doe  v.    Robson,   15  East,   32,   on   a 

(1)  See  cases  collected  in  the  note  to  question  whelhether  a  lease  had  really 
Barker  i'.  Hay,  2  Russ.  67.  Doe  r.  been  granted  in  possession,  and  not  in 
Williams,  (^owp.  621.  Hollowny  v.  reversion,  entry  of  Charges  in  an  attor- 
Raikes,  2  T.  R.  55.  Ivat  v.  Finch,  ney's  book,  sliewing  the  time,  when  a 
1  Taunt.  141.  Doe  v.  Jones,  1  Camp,  certain  lease  was  prepared,  and  which 
367.  Doe  v.  Pettet,  5  Barn.  &  Aid.  charges  were  shewn  (as  it  would  seem 
220.  Davies  v.  Pierce,  2  T.  R.  53.  by  the  sanje  book)  to  iiave  been  paid. 
Strode  r.  Winchester,  1  Dick.  397.  were  held  to  be  evidence  after  the  atlor- 
Verbal  declarations  may,  however,  be  ney'«  death,  that  the  lease  was  prepared 
thought  of  inferior  weight  to  those  writ-  subsequently  to  the  time  when  it  bore 
ten,  as  being  more  carelessly  made,  and  date,  and  at  a  period  wlien  it  would 
being  often  unfaithfully  reported  ;  they  have  been  a  lease  in  possession.  It  has 
are  besides  more  seldom  connected  with  been  observed,  that  in  such  cases  of  en- 
any  course  of  business.  tries  in  the  books  of  deceased  attorneys, 

(2)  Stanly  w.  White,  14  East,  399,  the  entries  do  not  deservfi  much  addition- 
where  the  declarations  accompanied  acts  al  credit  from  the  circumstances  of  the 


288  Hearsay   Evidence.  [Ch.   16. 

[  *32G  ]  *upou  a  quesiion  whether  a  surrender  to  a  recovery  could  be 
presumed,   the  book  of  a  deceased    attorney    was  produced, 
which  contained  a  charge  of  a  sum  for   suffering    a  recovery, 
two  items  of  which  related  to  the  drawing  of  a  surrender,  and 
it  appeared  by  the  book  that  the  bill  was  paid.      The    Court 
held  that  the  entries  were  admissible  evidence,    and  material 
upon  the  inquiry  into  the  reasonableness  of  presuming  a  sur- 
render.    In  Barry  v,    Behhingion^    before  cited,  (1)  upon  a 
question  of  the  soil  and  freehold  of  the  defendant,  entries  by  a 
deceased  steward  of  a  person,  under  whom  the  plaintiff  claim- 
ed, acknowledging  the  receipt  of  monies  on  account  of  tres- 
passes committed  on  the  place  in  dispute,  were  held  to  be  ad- 
missible evidence  to  disprove  the  defendant's  title,  and  to    es- 
tablish that  of  the  plaintiff.     In    Higham  v.    Ridgway,  (2) 
upon  a  question  respecting  the  age  of  a  person  suffering  a  re- 
covery, an  entry  made  by  a  deceased  accoucheur  in  his    book 
of  having  delivered  a  woman  of  a  child  on  a  certain  day,    re- 
ferring to  his  ledger,  in  which  he  had  made  a  charge  for   his 
attendance,  which  was  marked  as  paid,    was  held  admissible 
evidence  of  the  time  of  the  child's  birth.     And  Lord   Kenyon, 
in  speaking  of  the  evidence  of  stewards'  books,  observes,  that 
"such  books  may  be  read,  not  only  to    charge    the    steward 
with  the  amount,  but  to  show  on  behalf  of  the    tenants,    that 
.  rents  have  been  received,  and  also  to  show,  in  cases   where  it 
might  become  a  question,  what  kind  of  rents  were  payable  out 
of  particular  estates."  (3) 
[  *327  J       *The  principle  of  the  admissibility  of  declarations  against 
interest,  for  the  purpose  of  proving  every  thing  contained    in 
them,  was  carried  still  further  in  the  case    of  Stead   v.  Hca~ 
ion.  (1)     In  that    case,  which  respected    the  existence    of  a 

fact  of  p;iyment   being    added.     For   it  paid    only  sliouid  be    admitted    in    evj- 

would  not  be  probable,  that  fictitious  in-  dence,    vvilliout   the  context  which    ex- 

utructions  would,  without    an   assignable  plains    to    what    it   refers.     We    must, 

motive  be  inserted  in  the  attorney's  bonU;  therefore,  look  to  the  rest  of  iho   entry, 

or  if  such  a  motive  existed,    the   adding  to  see  what  the  demand    was,  which   he 

of  the  fact    of  payment   would    not    re-  thereby  admitted  to    have  discharged. — 

move  the  suspicion  attached  to  the  entrv.  By  the  reference  to  the  ledger,  the  entiy 

In   Shipwith    v.   iShirley,    11    Yes.    65,  there  is  virtually   ijicorporaled  with,  and 

where  an  attorney's  book  was   adduced  made  a  part  of  the  other  entry,  of  which 

along    with   other  evidence   in    proof  of  it  is  explanatory."     i'or  other  instances, 

the  lost  deed,  it  does  not  appear  that  the  see  Roe  v.  Rawlins,  7  East,  291,  receipt 

charges  were  entered  as   paid.     Blaike-  of  rent   in  account   book    of  tenant    for 

ler  V.  Crofts,  Comb.  348.      12  Vin.  Ab.  life,  to  show  the  amount  of  ancient  rent. 

85.     See    observations    in    the   case    of  Doe  d.  Powell  v.  Hill,  cited    by    Taun- 

Warren  v.  Greenville,    by    Lord    iMans-  ton,  J.,  in   Chambers  v.   Bernasconi,    1 

field,  in  Goodtitle  v.   Dulve  of  Chandos,  Cr.  M.  &  R.  where    Richards,  B.,    said 

2  Burr.  1071,  and  remarks  of  Lord  El-  that  he  could  not   divide    the  entry    into 

lenborough,  upon   these   observations   in  two. 

Higham  v.  Ridgway,  10  East,  117.  (3)  In  Calvert  v.  Archbishop  of  Can- 

(1)  4  T.    R.    514.     In  this  case   the  terbury,  2  Esp.    646. 

eteward's  accounts  were  in  his  handwrit-         (1)  4  T.  R.  669.     Further  concern- 
ing,   but  not  signed  by  him.  ing    entries    in   churchwardens'    books, 

(2)  10   East,    109.     Lord  Ellenhoi-  Cook  v.  Bankes,    2  C.    &    P.    p.    481, 
ough,  said   "  it  was  idle  that   the  word  supra,  p.  259. 


Sect,   l.j  Declarations  aga'uist  Interest.  289 

customary  payment  for  the  reparation  of  a  parish  churcli, 
churchwardens'  accounts  were  produced,  in  which  were  the 
following  entries, — "  Received  of  Haworth,  who  this  year  dis- 
puted this  our  ancient  custom,  but  after  we  had  sued  him, 
paid  it  accordingly,  8/.  and  1/.  costs  ;"  And,  at  the  head  of 
the  same  page  was  written,  ''  It  is  an  ancient  custom  thus  to 
proportion  church-lay :  1st.  The  chapelry  of  Haworth  pay 
one-fifth,  Bradford  a  third  of  the  remainder,  and  the  rest  to  be 
legally  divided  according  to  the  churchwardens  of  the  several 
other  townships  in  the  parish."  The  Court  were  of  opinion, 
that  the  entry  of  payment  was  clearly  admissible,  because  the 
officers  thereby  charged  themselves  with  the  receijn  ;  and 
that  the  other  entry  was  admissible,  because  immediately  re- 
ferred to,  and  that  both  of  them,  being  written  on  the  same 
page  and  on  the  same  subject,  must  be  taken  into  considera- 
tion together  ;  that  they  were  both  parts  of  one  and  the  same 
transaction,  each  explaining  the  other. 

In  the  case  of  Marks  v.  Laliee,  (2)  an  entry  of  tender  and 
refusal  of  money,  made  by  a  deceased  clerk  of  an  attorney, 
in  a  day-book  kept  for  the  purpose  of  entering  his  daily  trans- 
actions, was  held  to  be  admissible  evidence  to  prove  the  ten- 
der ;  it's  admissibility  was  rested  on  the  ground  that  it  was  .  ' 
evidence,  that  the  clerk  had  received  the  money  and  had  not 
disposed  of  it  according  to  his  instructions,  so  that  it  rendered 
him  subject  to  a  pecuniary  demand. 

But  it  may  be  thouaht  that  there  is  a  distinction  between  Collateral 
cases,  where  the  admission  agamst  mterest  is  part  or  one  en- 
tire transaction  with  the  rest  of  the  declaration,  (as  in  the  in- 
stance of  stewards'  entries,  where  the  entry  might  mean  noth- 
ing unless  the  whole  of  it  were  read,)  and  cases  where  de- 
clarations embrace  ^matters  perfectly  collateral.  (1)  This  [  *32S  J 
point  was  discussed  in  the  case  of  Chainhers  v.  Bernasco- 
ni,  (2)  where  one  of  the  questions  was,  whether  the  certificate 
of  a  capture  by  a  sherifi's  officer  stating  the  place  of  arrest, 
was  evidence  that  the  plaintiff  had  been  arrested  at  the  place 
stated.  Mr.  Baron  Bayley  expressed  an  opinion,  that  suppos- 
ing  the    certificate   was  admissible  for   any  piu-pose  (as  be- 


vjciiivc^     ill     iini    ntj\j  \  Kj    v^iui^.T      i\it        VlliCil      ijui—  t'     j'lii^.     t/i^-x-    »-'i«iv^     t.'.         J    iiuiiiti^if 

poses,  than    ihose    for  which    the    entry  ."<:  I'ul.  188,  where  a    prison-book    w.is 

was  originally   made,  on  ihe  ground  tiiat  held   admissible   to    prove  the  oeriod   of 

the  statements  received  were  part  of  the  cooimitment    and    discharge  of  the  pris- 

res  grsfip,  with    the   payment  or   other  oner,  but  not  the  cause    of  the  coiTiiiiit- 

iriatter  a;;aiiist  interest.  It  may  often  how-  inetit. 

ever,    happen    that  an    ent»re    siaieuient  (2^    1  Cr.  Si  J.   156,    liJe    infra,    p. 

must  be  read,    though    the   jury    be  di-  313. 
reeled  not  In  consider  part   ol  it  at*  evi- 

37 


290 


Hearsay  Evidence. 


[Ch.   16. 


ing  a  declaration  against  interest,  or  rather  as  made  in  the 
course  of  official  duty,)  it  was  not  admissible  to  prove  the 
place  of  arrest.  (3) 

In  the  case  of  Rndd  v.  Wright^  (4)  a  survey  was  tendered 
[  *329  ]  *in  evidence,  which  had  been  made  for  the  use  of  Trinity  Col- 
lege, Cambridge,  who  were  impropriators  of  a  living  of  which 
the  plaintiff  was  vicar,  and  in  this  survey  certain  closes  were 
stated  as  being  titheable  to  the  vicar.  Lord  Lyndhurst  ob- 
served, that  although  this  document  would  be  evidence  against 
the  college  in  a  suit  between  them  and  the  vicar,  it  would 
admit  of  some  consideration,  whether  it  was  admissible  in  ev- 
idence against  a  third  person  ;  but  that  it  was  unnecessary  to 
decide  that  question,  because  the  object  of  producing  the  sur- 
vey in  evidence  arose  out  of  a  marginal  note  to  the  survey. 
His  Lordship  thought  that  the  marginal  note  could  not  be  re- 
ceived in  evidence,  inasmuch  as  it  was  in  the  nature  of  a  col- 
lateral and  incidental  observation  made  by  the  person  who 
framed  the  survey  ;  and  that  it  did  not  follow,  because  a  doc- 
ument is  received  in  evidence  in  which  there  are  entries  against 
the  interest  of  a  party,  that  therefore  collateral  and  indepen- 
dent matter,  which  is  not  a  necessary  part  of  such  entries, 
ought  to  be  received.  The  case  of  Stead  v.  Heaton,  (1)  his 
Lordship  observed,  did  not  by  any  means  go  to  that  extent. 

In  order  to  render  declarations  against  interest  available,    it 
is  not  essential  that  the  deceased  person,  who  made   the  en- 


Maker  of 

entry  not 
competent 


(3)  Mr.  Baron  Bayley  seems  to  have 
treated  the  question  as  being  clear,  that 
the  declaration  was  not  against  interest, 
and  he  considered  that  it  appeared  from 
the  facts  of  the  case,  that  it  was  not  a 
necessary  part  of  the  officer's  duty  to 
state  the  particular  place  of  arrest.  The 
case  involved  two  other  questions  besides 
that  noticed  in  the  text  ;  viz.  whether 
the  declaration  was  against  interest  ;  and 
whether  it  was  receivable  at  ail,  as  be- 
ing made  in  the  course  of  official  duty. 
The  Court  of  Exchequer  thought  the  ad- 
missibility of  the  evidence  a  question  of 
so  much  importance,  that  they  wished 
the  parlies  to  have  an  opportunity  of 
putting  it  on  the  record.  And  see  the 
decision  on  the  same  case  in  the  Court 
of  Error,  infra,  p.  344. 

(4)  Before  Lord  Lyndhurst,  Exch.  11 
July,  1832.  The  marginal  note  stated 
that  the  closes,  which  had  been  specified 
as  titheable  to  the  vicar,  formed  part  of  a 
certain  close  mentioned  in  the  terriers  ; 
and  if  so,  they  broke  in  upon  the  inlirety 
of  a  district,  for  which  the  modus  was 
claimed.  It  is  to  be  observed,  that  al- 
though the  interests  of  the  rector  and 
vicar  were  opposed  to  each  other,  yet 
the  college  having  the  patronage   of  the 


vircarage,  it  was  to  their  interest  that 
whatever  tithes  were  clearly  payable  to 
the  vicar  and  not  to  them,  should  be 
payable  in  kind  and  not  by  a  modus. 
And  if  it  was  clear  by  other  evidence, 
that  they  had  no  right  to  the  tithes  of  a 
particular  close  in  any  shape,  they  would 
not  be  prejudicing,  but  promoting  their 
interest,  by  admitting  this  acknowledged 
fact,  and  inserting  as  part  of  the  same 
entry  a  declaration  tending  to  show  that 
the  tithes  were  payable  in  kind.  In  this 
case  also,  it  would  have  been  very  ques- 
tionable whether  an  entry  on  the  part  of 
the  corporation  could  be  received  in  ev- 
idence against  strangers,  on  the  ground 
of  its  being  against  interest.  The  case 
of  Short  V.  Lee,  supra,  p.  331,  is  no 
authority  for  this  position,  as  the  person 
whose  interest  was  affected  by  the  entry 
was  deceased.  The  death  of  the  person 
making  the  survey  had  nothing  to  do 
with  the  question  of  its  admissibility  in 
the  present  case.  It  was  not  argued  that 
the  evidence  was  against  his  interest,  or 
was  admissible  on  the  ground  of  reputa- 
tion. The  evidence  was  rejected  by 
Littledale,  J.,  at  the  trial. 
(1)   Supra  p.  327. 


Sect.   l.J  Declarations  against  Interest.  291 

tries,  should  have  been  a  competent  witness  whilst  living,  to 
prove  the  facts  contained  in  the  declaration.  (2)  This  lias 
been  expressly  *ruled  in  the  case  of  Short  v.  Lee,  where  the  [  *330  ] 
entries  of  a  deceased  member  of  an  ecclesiastical  corporation 
were  admitted  on  behalf  of  that  corporation  in  a  suit  brought 
by  them  for  tithes.  (I)  * 

The  declaration  of  deceased  persons   against  their  own  in-  ^"}P\^^', 

11  1      •      -1  1        •  -1  1  1        milled,  oth- 

terest  are  not  the  less  admissible  in  evidence,  because  the  er  living 
facts,  to  which  the  declarations  relate,  may  be  proved  by  evi-  testimony, 
deuce  of  another  kind,  as,  for  instance,  by  a  living  witness. 
This  rule  may  be  founded,  partly  on  the  great  credit  due  to 
declarations  against  interest,  and  partly  in  the  inconvenience 
of  proving,  in  every  case,  the  failure  of  other  evidence.  (2) 
It  was  held,  in  MiddletonY.  Melton,  (3)  that  the  entry  made 
by  a  deceased  collector  was  proof  of  the  fact  of  the  money 
having  been  paid,  without  calling  the  persons  who  paid  it,  or 
showing  tliat  they  were  dead.  And  it  appears  from  the  facts 
of  earlier  cases,  that  the  same  understanding  of  the  Courts  as 
to  this  point  is  to  be  implied  from  them.  (4) 

In  order  to  make  entries  against   interest   evidence,   it    has  Proof  of  de- 

Till-  1  1  1       >.      i-  clarani  s 

been  held  in  some  cases  to  be  necessary  to  snow,  by  testimony  siiuaiioii. 
dehors  the  entries,  that  the  person  making  the  entry  was  in 
the  situation,  in  which  he  purports  to  be.  The  character  of 
the  evidence,  it  has  been  said,  must  be  established,  before  the 
entry  is  read.  (5)  Thus,  in  the  case  of  De  Rutzen  v. 
Farr,  (6)  it  was  held,  that  accounts  of  rent,  signed  by  a  person 
styling  himself  *clerk  to  a  steward,  but  not  shewn   to   have  [  *331  ] 

(2)  Though  such  a  qualification  of  that  case  the  declarant  would  have  been 
the  rule  is  slated  by  Mr.  Justice  Bayley,  incompetent,  on  the  ground  of  being  a 
in  Highamc.  Ridgvvay,  10  East,  109,  yet  party  to  the  suit,  to  have  been  examin- 
none  of  the  other  Judges  advert  to  it.  ed  in  favour  of  the  corporation.  But  he 
And  Mr.  Justice  Bayley  lays  down  the  might  have  been  examined  if  he  had 
rule  in  more  unqualified  terms,  in  Doe  v.  raised  no  objection  against  the  corpora- 
Robson,  15  East.  See  the  observations  tion  to  prove  the  fact  for  which  his  en- 
of  the  Master  of  the  Roils,  as  the  obser-  try  was  used,  viz.  payment, 
vations  of  Mr.  Justice  Bayley,  in  Short  (2)  It  will  be  seen,  infra,  that  the 
V.  Lee,  2  Jac.  &  W.  464.  See  an  ar-  admission  of  the  evidence  does  not  im- 
gument  relative  to  this  point  in  BarUert).  pugn  the  principle  on  which  secondary 
Ray,  2  Russ.  71.  In  Warren  v.  Green-  evidence  of  facts  is  excluded, 
vill,  2  Str.  1129,  SM^^ra,  p.  325,  it  was  (3)  10  Barn. &  Cress.  3 17, and  ride  in- 
said  by  the  Court,  as  a  reason  for  receiv-  fra,  p.  340.  Pool  v.  Dicas. 
ing  an  attorney's  books,  that  he  might  (4)  See  observations  of  I'arke,  J.,  in 
have  been  examined  if  living,  and  his  Middleton  ?•.  Aielton,  10  Barn.  &  Cress, 
books  were,  after  his  decease,  the  best  32S.  In  case  of  Barry  v.  Bebbinglon, 
evidence.  In  Gleadoii  v.  Atkin,  1  Cr.  4  T.  R.  514,  which  was  tried  in  1791, 
&  M.  420.  Bayley  B.,  repudiates  the  one  of  the  memoranda  was  a  receipt  of 
doctrine,  that  declarations  cannot  be  re-  a  sum  of  money  in  1785. 
ceived,  except  where  the  declarant  might  (5)  See  per  Lord  Lyndhurst,  and  Bay- 
have  been  examined  in  his  life-time,  and  ley,  B.,  in  Davics  v.  Morgan,  1  Cr.  & 
refers  to  Middleton  «.  Melton,  10  B.  i;  J.  590.  It  does  not  appear  in  that  case 
C.  326.  Doe  v.  Hobson,  15  East,  32.  whether  the  entries  purported  to  be  made 
Bosworth  V.  Cotchett,  infra,  p.  348,  as  by  corporators  or  by  strangers. 
showing  that  no  such  qualification  exists.  (6)  4  Ad.  ^  E.  53.  The  accoHnta 
(1)  2  Jac.  &  W.  564.  The  rule  is  were  found  among  the  family  muniments, 
there  laid  down  in    general    terms.     In  which  might  seem  to  afford  a  reasonable 


292  Hearsaij  Evidence.  [Ch.   IG. 

been  employed  by  such  steward,  otherwise  than  by  the  ac- 
counts themselves,  were  not  evidence  to  prove  that  the  rent 
has  been  received. 

Where  the  entries  are  produced  in  evidence,  as  being  those 
of  receivers  of  private  individuals,  it  has  been  ruled,  that  it 
should  appear  by  evidence  aliunde,  that  the  persons  making 
the  entries  filled  that  character  at  the  time  when  the  entries 
were  made.  Thus,  in  the  case  of  Short  v.  Lee,  (1)  where 
the  accounts  of  a  tithe  collector  were  produced  in  evidence,  it 
was  held  to  be  necessary  to  prove  aliunde,  that  the  person 
whose  book  was  produced  was  authorised  to  collect  the 
tithes.  (2) 

But  in  the  same  case,  account-books  in  the  possession  of  a 
corporation,  entitled  to  an  impropriate  rectory,  purporting  to 
be  accounts  of  their  collector  of  tithes,  were  received,  without 
proof  aliimde,  that  the  accounting  party  was  really  the  collec- 
tor ;  on  the  ground,  that,  by  the  charter  of  the  corporation,  it 
was  their  duty  to  appoint  proctors  to  receive  the  tithes,  and 
a  corporation  could  have  received  the  tithes  themselves. 
The  point  was  said  to  be  not  dissimilar  to  that  decided  in 
regard  to  collectors  of  incumbents  in  general,  they  being 
persons  whose  character  depends  on  the  pleasure  of  a  private 
individual,  who  might  or  might  not  appoint. 

It  seems,  that  the  situation  of  the  declarant  may  sometimes 
be  established  by  the  internal  evidence  of  the  books  contain- 
ing his  entries.  In  Doe  v.  Lord  George  Thynne,  (3)  upon  a 
[  *332  ]  question  ^whether  certain  ancient  books,  which  were  produ- 
ced from  the  archives  of  the  Dean  and  chapter  of  Exeter, 
were  the  books  of  receivers  debiting  themselves  with  the  re- 
ceipt of  money,  and  on  that  account  admissible  in  evidence, 
it  was  held,  that  the  similitude  which  the  entries  bore  to  the 
books  of  receivers  of  the  same  body  in  modern  times,  was  not 
a  safe  and  adequate  ground  for  presuming    that    the    ancient 

presumption   of  their   being   genuine. —  141.     See   Manby  u.  Curtis,  1  Pr.  225, 

And  see  Short  v.  Lee,  2  Jac.  ^  VV.  464,  contra.    The  accounts  in  Short  v.  Leigh, 

467.  were  of  the    dates    1752,    175.3,    1754, 

(1)  2  Jac.  &  W.  464.  Manby  i5.  and  the  cause  was  heard  in  1821.  See 
Curtis,  1  Pr.  225,  where  proof  of  agen-  Jones  v.  Carrington,  .3  E.  .^  Y.  1181, 
cy  was  required  in  the  case  of  a  receipt  proof  of  tithe  receipts  by  a  lessee,  with- 
for  tithes  fifty  years  old.  out  producing  the  lease.     Yates  r.  Leigh, 

(2)  It  is  to  be  observed,  that  it  would  Gvvill.  861.  2  E.  <^  Y.  151,  where  re- 
be  very  difficult  to  prove  the  appoint-  ceipts  purporting  to  be  signed  by  a  re- 
inent  of  reeves  or  bailiffs,  whose  ac-  ceiver,  but  appearing  to  have  been  in 
counts  are  of  great  antiquity,  and  they  fact  signed  by  his  deputy,  were  rejected. 
have  certainly  in  practice  been  often  (3)  10  East,  208.  It  would  seem 
admitted  without  such  proof,  when  pro-  that  the  similitude  between  the  ancient 
daced  from  the  proper  custody.  The  and  modern  books  was  a  safe  and  ade- 
internal  evidence  in  such  cases  leaves  no  quate  mode  of  inferring  the  nature  of  the 
reasonable  ground  for  doubt.  The  hand-  former.  That  it  is  sulfioient  if  the  en- 
writing  of  a  deceased  steward,  need  not  tries  are  signed  by  a  deceased  agent, 
be  proved  after  thirty  years,  ?zrfe  in/Va.  without  their  being  in  his  handwriting, 
Wynne  u.  Trywhit,  4  B.  ,^  A.  376.  see  Doe  r.  Stacy,  6  C.  4- P.  139. 
Jones  V.  Waller,  GwiU  847.     2  E.  §•  Y. 


Sect.   1.]  Declarations  against  Interest.  293 

books  were  kept  by  persons  of  the  same  character  and  des- 
cription, and  accounted  upon  as  such.  But,  on  it's  appearing 
that  some  of  the  entries  in  the  ancient  books  (not  relating  to 
the  matter  in  question)  imported  that  A.  B.  was  therein  ac- 
counting to  the  Dean  and  chapter  for  money  paid  to  himself, 
with  the  receipt  of  which  he  therein  debited  himself  in  such 
forms  as  solvit  7nihi,  solvit  per  tnc,  the  Court  thought  that  this 
was  strong  internal  evidence,  that  the  books  were  actually  re- 
ceivers' books. 

Section  II. 

Declarations  and  Entries  made  in  the  course  of  Duty  or 
Employment. 

According  to  the  observations  of  several  Judges  on  different 
occasions,  it  might  seem  that  where  there  was  a  competency 
of  knowledge,  or  at  least  peculiar  means  of  knowledge  in  an 
individual  making  a  declaration,  and  a  total  absence  of  inter- 
est to  pervert  the  facts  to  which  he  has  spoken,  his  declara- 
tions would  be  admissible  evidence  after  his  death,  even 
though  the  declarations  did  not  operate  against  his  interest.  (1) 
But  these  ^observations  are  too  loose,  and  perhaps  too  contra-  [  *333  ] 
dictory  to  the  principle  of  the  cases  which  have  been  just  con- 
sidered, to  be  regarded  as  establishing  any  rule  less  rigid  than 
that  above  laid  down,  which  requires  the  declaration  to  be 
against  the  interest  of  the  person  making  it,  before  it  can  be 
received  in  evidence. 

There  appears,  however,  more  reason  for  considering  that  a  General 
rule  exists,  which  allows  of  declarations  of  deceased  persons 
being  received  in  evidence,  even  though  not  made  against 
their  interest,  provided  that  in  addition  to  a  peculiar  knowledge 
of  the  facts,  and  the  absence  of  all  interest  to  pervert  them, 
the  declarations  appear  also  to  have  been  made  in  the  ordinary 
course  of  official,  professional,  or  other  business  or  duty,  and 
been  immediately  connected  Avith  the  transacting  or  discharg- 
ing of  it,  and  contemporaneous,  or  nearly  so,  with  the  trans- 
action to  which  they  relate.  (1) 

(1)  See  statement  by   Bayley,  B.,  of  ca?e  in  1  Cr.  .VJ-  458.     By    Le  Blanc, 

the  principle  of  the  case  of  Roe  v.  Raw-  in  Iligham  «.  Ridgway,    10  East.     (But 

lins,  in  Gleadon  v.    Atkin,  I    Cr.   Sf  M.  subsequent  authorities    have  treated    the 

420.     The   declaration  of  a  person  hav-  case  of  lligham  «.  Ridgway  as  decided, 

ing  peculiar    means  of  knowing    a    fact,  on  the   ground  of  interest.)     By  Little- 

and  no  interest  in   misrepresenting  it,    is  dale  and  Park,   J.,    10    Barn.  Sf    Cress, 

admissible  to  prove  the  fact,  a  fortiori,  .326,327.     By    Lord  Lyndhurst,  C   B., 

if  it  were  against   his  interest,    by    Lord  Bayley,  B.,  1  Cr.  Sf    .1.  456,  457.     By 

Ellenborough,    in    speaking    of  vicars'  Bayley,  B.,  in  Glendon  v.  Atkin,    1  Cr. 

books,    in  Roe  v.  Rawlins,  7  East,  290,  fy  U.  420. 

By  Lord  Ellenborough,  in    Doe  v.  Rob-  (•)  In  speaking  of  the  cases  upon  this 

son,  15   East,  34.     But  see   by  Bayley,  subject,  it  has  been  frequently    said    that 

J.,  ihid.y   and   when   speaking   of  that  they  have  gone  far   enough,  or   too  far. 


294  Hearsay  Evidence.  [Ch.   16. 

Principle  of  It  appears  to  be  a  legitimate  ground  for  admitting  such  de- 
admissioii.  gij^i.^tions  in  evidence,  that  it  would  be  contrary  to  the  expe- 
rience of  mankind,  if,  in  the  generality  of  instances  at  least, 
they  were  not  exempt  from  the  suspicion  of  fraud  or  careless- 
ness. By  the  conditions  on  which  such  evidence  is  proposed, 
it  is  assumed  that  no  temptation  to  deceive  can  be  suggested  ; 
and  it  is  no  unimportant  guarantee  against  fraud,  that  the  de- 
clarations cannot  be  available  for  the  author  of  them  during 
his  life-time.  By  requiring  that  the  declarations  should  have 
been  made  in  the  course  of  ordinary  business,  and  not  only 
connected  with  the  transactions  to  which  they  relate,  but  al- 
[  *334  ]  so  contemporaneous  *with  them,  a  reasonable  ground  is  laid 
for  presuming  that  they  are  accurate. 

Another  ground  for  the  admissibility  of  such  evidence  is, 
that  the  weight  attached  to  it  is  not  founded  merely  on  the 
presumption  of  the  credit  due,  under  the  circumstances,  to 
the  authors  of  the  declarations,  but  also  on  the  presumption, 
that  in  the  ordinary  course  of  business  such  declarations 
would  have  been  made,  if  the  principal  fact  to  be  proved  had 
really  taken  place.  The  case  is  analogous  to  that  in  which, 
it  has  been  seen,  declarations  are  received  as  evidence  of  co- 
existing motives  and  feelings,  (1) — only  it  is  not  necessary, 
that  the  same  intimate  connection  should  exist  between  the 
thing  proved,  and  the  evidence  of  it  ;  nor  is  the  thing  to  be 
proved  of  a  nature  of  a  secret.  It  is  enough,  if  the  fact  and 
the  declaration  are  ordinarily  and  usually  connected  with  each 
other.  (2) 

It  may  also  be  worthy  of  remark,  that  as  the  transactions  of 
business  are  frequently  confined  to  the  knowledge  of  a  few  per- 
sons, there  is  some  reason  on  the  ground  of  necessity,  arising 
out  of  the  subject  matter  of  the  declarations,  which  may  be 
thought  to  warrant,  under  proper  safeguards,  some  relaxation 
of  the  strict  rules  of  evidence.  (3) 

It  is  to  be  observed,  however,  that  there  are  authorities, 
which  deny  the  existence  of  the  rule  now  under  consideration, 
as  distinguished  from  that  which  requires  it  to  be  shewn,  that 
declarations  of  deceased  persons,  to  be  admissible  in  evidence, 
were  made  against  interest.  (4)     And,  doubtless,  many  of  the 

and  that  the  principle  of  them  ought  not  to  treat  this  as  the  true  principle   of  the 

to  be  extended,  see  per  Tindal,  Ch.    J.,  rule,  vide  infra,  p.  336. 

in  Marks   v.  Lahee,  3   Bing.  N.  C.  418,  (3)  It   has    heen   seen   that    similar. 

Per  Litiiedale,  J.,    in  Doe  v.  Vowles,  1  though  more  cogent  reasons   of  necessi- 

M.  &   Ro.   262.     Per   Holland,    B.,   in  ty,  are  the  foundation  of  the  admissibili- 

Chambers   v.  Bernasconi,    1  Cr.  Sf  J.  p.  ty  of  hearsay   in  the   cases   of  pedigree 

456.     These  observations  have  apparent-  and  matters  of  general  interest,  and  also, 

ly  been   intended  to   include   several   of  in  some  measure,  of  dying   declarations, 

the  cases  stated  in  the  last  section.  (4)  In  Calvert  v.  Archbishop  of  Can- 

(1)  Vide  Supra,  p.  200,  et  seq.  terbury,    2    Esp.    646.     Lord  Kenyon, 

(2)  See  by  Parke,  J.,  in  Doe  v.  Tur-  says,  "The  cases  in  which  an  entry  made 
ford,  3  Barn.  &  Ad.  896,   who  appears     by  a  servant,  in  the  books  of  his  master, 


Sect.  2.J 


Declarations  of  Duty. 


295 


cases  *which  have  been  before  enumerated,  as  decided  on  the  [  *335  ] 
ground  that  the  declarations  received  in  evidence  were  ad- 
verse to  the  interest  of  the  makers  of  them,  might  and  proba- 
bly would  have  been  decided  on  the  more  general  principle, 
(namely,  that  the  declarations  were  made  in  the  course  of 
business,)  if  the  Courts  had  felt  no  hesitation  in  recognising 
such  a  principle. 

The  rule  now  under  consideration,  must  be  admitted  to 
have  been  principally  founded  on  authorities  of  an  early  date, 
when  much  precision  is  not  to  be  found  in  the  decisions  of 
our  Courts  on  the  subject  of  evidence.  (1)  But  a  recent  de- 
cision by  the  Court  oif  King's  Bench,  appears  to  have  estab- 
lished it  on  a  surer  footing.  (2) 

*ln  Doe  d.  PattesJiall  v.  Turford,  Parke,  J.,  recognises  the  [  *3o6  ] 
terms  of  the  rule,  for  the  admission  of  an  entry,  not  against 
interest,  to  be  applicable  to  a  case,  "  where  the  entry  is  one 
of  a  chain  or  combination  of  facts,  and  the  proof  of  one  raises 
a  presumption  that  another  has  taken  place  :  that,  where  an 
entry  is  against  interest,  proof  of  the  handwriting  of  the  par-  '  " 

ty  and  his  death  is  enough    to    authorize    the    reception  ;    at 


have  been  received  in  evidence, are  where 
by  such  entry,  the  servant  charges  him- 
self and  discharges  another  person." 
And  in  the  action  against  the  Archbish- 
op, Lord  Kenyon  rejected  the  evidence 
of  an  agreement  entered  in  the  plaintiti'a 
book  by  a  deceased  clerk,  stating  a  con- 
tract for  the  hire  of  horses.  It  is  ob- 
served of  thi;!  case,  however,  that  it  did 
not  appear  whether,  from  the  course  of 
business  or  otherwise,  it  was  to  be  as- 
sumed that  the  agreement  was  made  by 
the  servant  himself,  or  only  taken  down 
from  his  master's  hearsay.  In  Sikes  v. 
Marshall,  2  Esp.  705,  Lord  Kenyon 
rejected  entries  of  payments  in  the  hand- 
writing of  a  deceased  clerk.  In  Cham- 
bers V.  Bernasconi,  1  Cr.  §•  J.  451.  1 
Tyr.  335.  Infra,  p.  344.  The  Court 
of  Exchequer  appear  to  have  thought, 
and  Mr.  liaron  liayley  ejtpressly  states 
his  opinion,  that  a  certificate  of  a  sher- 
iff's officer  of  the  fact  of  a  caption, 
which  he  was  required  to  make  by  the 
course  of  his  office,  was  not  admissijjle  ev- 
idence, because  not  against  Jiis  interest,  it 
amounting  to  a  declaration  that  the  otiicer 
had  done  his  duty.  In  the  decision  upon 
the  case  of  Chambers  v.  Bernasconi,  in  er- 
ror, 1  Cr.  M.  k  R.  466,  the  Court  speak 
doublingly  as  to  the  certificate  being  ev- 
idence of  the  caption,  as  being  an  entry 
in  the  course  of  duty.  In  Barker  v.  Ray, 
2  Rusg.  76,  Lord  Eldon  intimated  an 
opinion  that  declarations  would  not  be 
receivable  in  cases  where  the  interest  of 


the  declarants  was  not  concerned.  In 
Cook  «.  Banks,  2  C.  &  P.  478,  Lord 
Tenterden  appears  to  have  ruled  several 
points,  on  the  supposition  that  entries 
of  particular  facts  could  only  be  evidence 
when  against    interest. 

(1)  In  the  reports  of  Lord  Raymond, 
Salkeld  and  Strange,  from  which  a  greal 
part  of  the  law  upon  this  subject  is  de- 
rived, the  rulings  are  to  be  read  with 
much  caution,  as  the  law  of  evidence 
according  to  which  the  determinations  of 
the  Coaits  are  at  present  governed,  has 
been  almost  entirely  created  since  the 
time  of  those  reporters. 

(2)  Doe  d.  Paltershall  v.  Turford,  3 
Barn.  &  Ad.  896,  vide  infra,  p.  339. 
It  is  there  said  by  Mr.  Justice  Taunton, 
that  though  most  of  the  prior  authorities 
in  support  of  the  rule  were  JVtsi  Prius 
decisions,  yet  that  Evans  v.  Lake,  infra, 
p.  338.  B.  N.  P.  282,  was  a  trial  at 
bar.  Mr.  Justice  Taunton,  however,  left 
the  rule  somewhat  indefinite,  for  besides 
requiring  that  the  declaration  should  be 
made  by  a  deceased  person,  in  the  ordi- 
nary course  of  business,  and  at  the  time 
when  the  fact  it  records  took  place, 
says,  it  is  necessary  that  it  should  be 
corroborated  Ity  otiier  circumstances, 
rendering  it  probable  that  the  fact  occur- 
red. 'I'he  previous  authorities  were, 
however,  relied  on,  in  some  of  which 
the  probability  of  the  facts  having  occur- 
red or  not,  independently  of  the  entries, 
appears  to  have  been  equal. 


296 


Hearsay  Evidence. 


[Chap.   16. 


v/hatever  time  it  was  made  it  is  admissible  ;  but  in  order  to 
make  entries  in  the  course  of  business  admissible,  it  is  essen- 
tial to  prove  that  they  were  made  at  the  time  they  purport  to 
bear  date  ;  they  must  be  contemporaneous  entries."  He  ob- 
serves further,  "  that  a  necessary  and  invariable  connection 
of  facts  is  not  required  ;  it  is  enough  if  one  fact  is  ordinarily 
and  usually  connected  with  the  other."  And  Mr.  Justice 
Taunton,  in  the  same  case  observes,  "  that  a  minute  in  wri- 
ting, made  at  the  time  when  the  fact  which  it  records  took 
place,  by  a  person  since  deceased,  in  the  ordinary  course  of 
his  business,  when  corroborated  by  other  circumstances, 
which  must  be  proved,  is  admissible  in  evidence."  (1) 

In  Poolev.  Dicas,  (2)  the  same  principles  were  recognised, 
by  the  Court  of  Common  Pleas.  And  it  was  held,  that  an 
entry  made  at  the  time  of  a  transaction,  in  the  usual  course 
and  routine  of  business,  by  a  person  who  had  no  interest  to 
mistake  what  had  occurred,  was  receivable. 

In  the  case  of  Price  v.  Lord  Torrington,  (3)  (a)  the  plaintiff 
[  *337  ]  *who  was  a  brewer,  brought  an  action  against  Lord  Torring- 
ton  for  beer  sold  and  delivered  ;  and  the  evidence  given  to 
charge  the  defendant  was,  that,  according  to  the  usual  course 
of  the  plaintiff's  dealing,  the  draymen  came  every  night  to  the 
clerk  of  the  brewhouse,  and  gave  him  an  account  of  the  beer 
they  had  delivered  out,  which  he  set  down  in  a  book   kept  for 


(1)  3  Barn.  &  Ad.  890.  It  was 
said  that  this  was  the  "round  upon  which 
the  cases  of  Lord  Torrington,  Fiit  v. 
Fairclough,  Hagedorn  v.  Reed,  Champ- 
neys  v.  Peck,  Pitman  v.  Maddox  and 
others  of  the  same  nature  had  been  de- 
cided. 

(2)  1  Bing.  N.  C.  652. 

(3)  Salk.  2S5.  2  Lord  Kaym.  873, 
Holt,  300,  S.  C.  B.  J\.  P.  282.  The 
report  says,  "  Otherwise  of  the  shop- 
book  singly,  without  more."  It  may 
be  observed,  on  this  case,  that  supposing 
the  drayman  had  not  delivered  the  beer 
according  to  his  orders,  it  is  true  that 
his  signature  to  the  entry  would  not  have 
been  admissible  evidence  for  him,  yet 
lie  cnight  very  probably  have  signed  the 
entry  in  order  to  prevent  immediate  de- 
tection ;  or  to  avoid  his  being  precluded 
from  insisting  that  he  had  delivered  the 
beer.  He  charges,  indeed,  himself  with 
having  received  the  beer  ;  but  it  is  easy 


to  believe  that  he  would  have  experi- 
enced at  least  equal  difficulty  in  denying 
the  receipt  of  the  beer,  as  in  denying  the 
delivery  of  it,  supposing  it,  in  fact,  re- 
ceived, but  not  delivered.  Supposing 
him  dishonest,  he  had  an  interest  in  de- 
nying the  receipt,  but  if  there  was  little 
(loul)t  of  that,  it  was  his  interest  to  state 
that  the  goods  had  been  delivered.  If 
he  had  omitted  to  state  the  fact  of  deliv- 
ery, it  must  have  led  to  immediate  in- 
quiry. It  is  observable,  that  in  the 
case  of  Calvert  v.  Archbishop  of  Can- 
terbury, 2  Esp.  645,  where  this  case 
was  cited,  Lord  Kenyon  appears  to  have 
considered,  that  it  was  decided  on  the 
ground  that  the  entry  was  against  inte- 
rest. In  Sikes  r.  Marshall,  2  Esp.  705, 
Lord  Kenyon  rejected  evidence  of  pay- 
ments in  the  handwriting  of  a  deceased 
clerk,  though,  it  might  be  said,  that  they 
impliedly  admitted  the  receipt  of  the 
money  paid. 


(a)  Price  v.  Torrington  is  upheld  in  15  Mass.  386,  where  the  entries  made  by 
a  deceased  clerk  were  admitted  to  verify  a  tradesman's  books. 

In  Elms  V.  Chevis,  2  M'Cord,  349,  where  the  clerk  who  made  the  entries  was 
out  of  the  jurisdiction  of  the  court,  it  was  held  sufficient  to  prove  his  handwriting. 
But  this  we  liave  seen  Cante  p.  312  no.)  has  been  questioned  in  a  late  casein 
iVew  York  where  the  cases  are  reviewed.     tSee  also  post  p.  33S,  note. 


Sect.  2.j  Declarations  of  Duty.  297 

that  purpose,  to  which  the  draymen  signed  their  names,  and 
the  drayman  whose  name  appeared  to  be  signed  to  an  entry, 
stating  the  deUvery  of  the  beer  in  question,  was  dead.  It 
was  ruled,  that  this  was  good  evidence  of  a  dehvery. 

In  Pitman  v.  Maddox,  (1)  in  an  action  on  a  tradesman's 
bill,  a  shop-book  was  admitted  by  Chief  Justice  Holt,  as  evi- 
dence, to  prove  the  delivery  of  goods,  it  being  proved  that  the 
servant  who  kept  the  book  was  dead,  that  the  entries  were  in 
his  handwriting,  and  that  he  was  accustomed  to  make  the  en- 
tries. 

In  the  case  of  Smartle  v.  Williams,  where    the   question 
was,  whether  mortgage-money  had  been  really  paid,  the  book 
of  accounts  of  a  deceased  scrivener  was  held  to  be  good   evi-     ' 
dence  of  payment  ;  (2)  in  this  case  it  does  not  appear,  that  the 
scrivener  charged  himself  by  the  entry. 

*In  the  case  of  Evans  v.  Lake,  upon  an  issue  out  of  Chan-  [  *338  ] 
eery  to  try,  whether  eight  parcels  of  Hudson's  Bay  stock, 
bought  in  the  name  of  Lake,  were  in  trust  lor  Sir  Stephen 
Evans,  Sir  Stephen  Evans'  assignees  (the  plaintiffs)  shewed, 
first,  that  there  was  no  entry  in  the  books  of  Lake  relating 
to  the  transaction  :  Secondly,  six  of  the  receipts  were  in  the 
hands  of  Sir  Stephen  Evans,  and  there  was  a  reference  on  the 
back  of  them,  by  a  deceased  book-keeper  of  Sir  Stephen  Elvans, 
to  the  book  marked  B.  B.  belonging  to  his  master.  The 
question,  upon  a  trial  at  bar,  was,  whether  entries  of  the  pay- 
ment of  the  money,  contained  in  the  book  referred  to,  should 
be  read.  The  Court  of  King's  Bench  admitted  entries  from 
the  book  in  question  to  be  read,  as  well  such  as  related  to  the 
above  mentioned  six  receipts,  as  also  some  which  related  to 
two  other  receipts  in  the  possession  of  the  son  of  Lake.  (1)  [a) 

(1)  2  Salk.  690.  Lord  Raym.  732.  bursar's  book  of  a  college  for  evidence. 
S.  C.  B.  N.  P.  282.  Lord  Holt  added  Per  Holt,  Comb.  249,  Smart  v.  Wil- 
that  the  evidence  of  delivery  was  asgood  liams.  In  Lord  Raym.  Rep.  745, 
as  the  proof  of  a  witness's  hand  to  an  Anon,  the  Court  say,  that  the  shop 
obligation.  It  may  be  observed,  tliat  if  book  is  not  evidence  for  a  tradesman, but 
the  bookkeeper  had  not  delivered  the  it  is  good  evidence  against  him,  or  for 
goods,  the  absence  of  an  entry  of  deiiv-  a  strans^er.  The  same  law  of  a  scriv- 
ery  would  have  been  strong  evidence  ener'a  book  for  maney  paid  by  him, 
against  him  in  an  action  brought  by  his  or  received  to  the  use  of  a  stianger,  or 
employer,  and  it  would  have  excited  an  the  book  of  a  bursar  of  a  college.  12 
immediate  inquiry.  Vin.   91,  pi.   25.     See  Lord    Lorton   r. 

(2)  H.  N.  1^.  283.  The  case  appears  Gore,  I  Dow.  n.  5,  where  a  case  sub- 
to  be  the  same  as  that  of  Smart  v.  VVil-  mitled  to  counsel  was  received  as  secon- 
liams.  Comb.  247,  of  which  the  follow-  dary  evidence  of  marri.ige  nriicles,  it  a|>- 
ing  note  is  given  in  12  Vin.  Abr.  88.  A.  pearing  that  the  case  had  been  charged 
b.  15.  Scrivener's  book  to  prove  a  for,  and  entered  as  paid,  by  the  family 
consideration    paid     ("as    a    tradesman's  attorney. 

book)  is  no  evidence  for  himself,  but  f)r  (1)    F,vans    v.    Lakfi,  B.  N.  P.  282. 

any  other   it   is.     We   have   allowed  a     Lord  Hardwicke  in  Glynn  v.  Bank   of 

(a)    Original  entries  made   in  the   usual   course   of  business   are   admisnible, 
where  the  person  who  made  them  is  dead  ;  Halliday  v.  Martinet,    20  J.  R.  168  ; 
3S 


293  Hearsay  Evidence.  [Ch.   16. 

In  Cliampneys  v.  Peck,  (2)  upon  a  question  whether  an 
[  *339  ]  ^attorney's  bill  had  been  delivered  within  a  month  before  the 
commencement  of  the  action,  an  indorsement  upon  the  bill, 
in  the  handwriting  of  a  deceased  clerk,  was  received  in  evi- 
dence. The  indorsement  was  in  these  terms  :  "  March  4th, 
1815,  delivered  a  copy  to  Mr.  Peck."  Upon  this  endorsement 
being  produced,  and  evidence  being  given  that  it  was  the  du- 
ty of  the  particular  clerk  to  deliver  the  bill,  and  that  such  an 
indorsement  was  usually  made  in  the  common  course  of  busi- 
ness upon  the  copy  kept,  Lord  Ellenborongh  ruled,  that  the 
indorsement  was  prima  facie  evidence  of  the  delivery  of  the 
bill. 

In  the  case  of  Doc  d.  Patterskall  v.  Turford,  (1)  it  was 
proved  to  be  the  usual  course  of  practice  in  an  attorney's  of- 
fice, on  serving  notices  to  quit  on  tenants,  to  indorse  on  the 
duplicates  of  such  notices  the  fact  and  the  time  of  the  notice. 
It  was  held,  that,  after  the  attorney's  death,   an  indorsement 

England,  2  Ves.  43,  says,  that  this  case  a  particular  person,  was  held  to  be  evi- 
vvent  a  great  way,  and  was  a  new  case,  dence  of  that  fact,  upon  proof  of  the 
See  by  Lord  Hardwicke  in  Lefebure  v.  course  of  business  followed  by  the  clerks 
Warden,  2  Ves.  54.  It  is  referred  to  in  the  office.  The  case  of  Digby  v. 
by  Taunton,  J.,  in  Doe  v.  Turford,  in-  Sieadtnan,  1  Esp.  327,  is  sometimes 
fra,  p.  339,  as  being  a  trial  at  bar,  and  considered  as  belonging  to  this  class  of 
therefore  entitled  to  great  weight.  cases:  whore,  in  an  action  of  trover, 
(2)  1  Stark.  C.  404.  The  cause  was  the  plaintift''s  shopman,  who  proved  the 
undefended.  In  Pritt  v.  Fairclough,  3  delivery,  was  allowed  by  Lord  Kenyon 
Camp.  307,  Lord  Ellenborough,  allud-  to  produce  the  shop-book,  containing  an 
ing  to  cases  of  this  description,  says,  the  entry  of  the  delivery  in  the  hand-writ- 
rules  of  evidence  must  expand,  accord-  ing  of  his  master,  but  seen  by  himself 
jug  to  the  exigencies  of  society.  In  that  within  a  short  time  after  it  was  made, 
case,  an  entry  by  a  deceased  clerk,  in  a  It  would  seem,  that,  in  the  present  day, 
letter-book,  prol'essing  to  be  the  copy  of  a  question  of  this  kind  could  only  arise, 
a  letter  of  the  same  dale,  made  accord-  upon  a  point  as  to  the  means  by  which 
ing  to  the  course  of  business,  was  re-  a  witness  might  refresh  his  memory.  In 
ceived  in  evidence.  The  case  also  of  Cooper  «.  Marsden,  1  Esp.  1,  the  same 
Hagedorn  v.  Reid,3  Camp,  379,  direct-  notion  appears  to  have  prevailed,  of  en- 
ly  confirms  the  case  in  the  text.  There  tries  in  banker's  books  by  a  clerk  pro- 
a  memorandum  of  a  deceased  clerk,  duced  as  a  witness,  being  substantive  ev- 
written  on  a  copy  of  a  license,  stat-  idence. 
ing  that   the  original   had  been  sent  to         (1)  3  Bar.  &  Ad.  890. 


Welsh  V.  Barrett,  15  Mass.  380  ;  Nichols  v.  Goldsmith,  7  Wend.  160  ;  1  Wash. 
R.  76  ;  6  Mart.  R.  351.  See  also  2  II.  Sf  J.  77  and  7  id.  467.  But  the  notary, 
messenger,  cashier,  clerk  or  other  person  who  made  the  entry  must  be  dead  ;  oth- 
erwise the  evidence  is  inadmissible.  6  Cowen.  162  ;  16  Wend.  586.  Mere  ab- 
sence beyond  the  jurisdiction  of  the  Court  will  not  excuse  the  production  of  the 
witness. 

In  the  case  cited  from  Wendell,  the  plaintiff  offered  the  check  rolls  or  accounts 
of  the  number  of  days  works  performed  by  men  in  his  employ,  without  the  oath 
of  the  person  making  the  entries,  held  that  they  were  not  admissible  : — 1.  because 
the  plaintiff  kept  clerks  and  other  witnesses  of  the  labor.  (12  J.  R.  461  ;  Hayw. 
458  ;  2  id.  24  ;  1  Binn.  234.); — 2.  They  were  not  the  books  of  daily  account 
of  the  plaintiff;  and  there  was  no  trust  implied  that  they  keep  these  accounts  for 
the  defendants,  12  J.  R.  461 ;  1  Bay.  33  ;  4  Mass.  455;  4Rawle,  291;  1  Hals.  94; 
13  S.  !f  R.  126  ;  2  Hals.  59  ;  4  S.  &  R.  5  ;  1  Binn.  237  :— 3,  It  was  not  a 
simple  charge  for  servioes  rendered  and  cannot  be  thu«  proved.  See  d  Conn.  844, 
and  1  Day.  104. 


Sect,  2.]  Declarations  of  Duty.  299 

made  by  him  on  the  duphcate  of  a  notice,  stating  the  original 
to  have  been  deUvered  to  a  tenant,  was  evidence  of  the  fact, 
that  the  original  notice  was  dehvered.  It  appeared  that  the 
entries  were  contemporaneous,  from  the  circumstance,  that, 
on  the  particular  day  when  the  attorney  was  supposed  to  have 
given  the  notice  to  quit,  he  left  home,  and  on  iiis  return  in 
the  evening  delivered  to  his  partner  the  duplicate  indorsed  by 
him,  which  was  produced  at  the  trial.  (2) 

*In  Poole  V.  Dicas,  (1)  it  was  held,  that  an  entry  of  a  dis-  [  *340  ] 
honor  of  a  bill  of  exchange,  made  in  the  usual  course  of  busi- 
ness at  the  time  of  the  dishonor,  in  the  book  of  a  notary  by 
his  clerk,  who  presented  the  bill,  might  be  given  in  evidence 
in  an  action  on  the  bill,  upon  proof  of  the  death  of  the  clerk 
who  made  the  entry.  It  was  observed  by  the  Court,  that  it 
was  the  duty  of  the  notary's  clerk  to  present  bills  for  payment 
on  the  evening  of  the  day,  when  payment  was  demandable. 
After  going  oat  with  the  bill  for  the  purpose  of  presentment, 
he  returns  and  makes  an  entry  in  the  margin  of  the  book,  in 
which  a  copy  of  the  bill  had  been  made  upon  it's  being  left 
at  the  notary's  for  the  purpose  of  presentment.  This  was 
all  in  the  ordinary  course  of  business.  And  the  clerk  had  no 
interest  to  make  a  false  entry.  Again,  the  book  in  which  the 
entry  was  made,  was  open  to  all  the  clerks  of  the  office,  so 
that  an  entry,  if  false,  would  be  exposed  to  speedy  discovery. 
The  entry  being  thus  j^Wma/acie  consistent  with  truth,  there 
were  many  accompanying  circumstances  which  tended 
to  confirm  it's  correctness,  (a) 

(2)  It  appeared   that   it  was  not   the  Chambers  v,  Bemasconi,  1  Cr.  M.  &  R. 

habit  of  the   attorney  to   serve    notices  p.  367,  the    Chief  Justice  intimates  that 

himself.     But  it  was  said,  that  the  attor-  such  an  entry  made  by  a  clerk  would  fa- 

iiey  must    be   presumed  to    do    what  he  vour  his  interest,  asking,  if  the  clerk  had 

required  his  clerks    to   do.     Tlie  proba-  not    an    interest    in   saying    tiiat  he  had 

bility  of  the  notice  having  been  deliver-  done  his  duty. 

ed,  was  confirmed  by  other  circumstan-  (1)  1  Bing,  N.  C.  662.  The  circuin- 
ces  which  were  relied  on  by  the  stance  of  the  entry  having  been  made  at 
Judges,  but  (with  the  exception  of  Mr.  the  time  was  considered  by  the  Court  to 
J.  Taunton)  they  do  not  appear  lo  have  be  very  material.  It  is  lo  be  observed, 
expressed  an  opinion,  that  those  circum-  that  the  Court  appear  to  have  sought  for 
stances  were  essential  to  the  admissibili-  confirmatory  circumstances  in  corrobor- 
ty  of  the  indorsement.  This  case  is  ap-  ation  of  the  general  principle.  As  to  en- 
proved  of  in  Poole  v.  Dicas,  1  Bing.  N.  tries  by  a  notary's  clerk,  see  Sutton  ». 
C.    652,    though     in    the    argument   of  Gregory,  Peake's  Add.  Ca.  150. 

(a)  Book  of  jVotary.  The  case  of  Nichols  v.  Webb,  8  Wheat,  326,  has 
been  doubted,  so  far  as  it  is  considered  an  authority  to  establish  the  point 
that  the  entry  on  the  record  of  a  deceased  notary's  book  "that  due  notice 
■was  given  to  the  indorser"  is  to  be  taken  as  proof  that  legal  notice  was 
given.  By  Clayton,  C.  J.,  1  Har.  &-  Del.  R.  10.  "The  book  I  would  liold 
as  evidence  of  all  the  facts  it  gives  as  to  the  time,  manner,  &c.  of  notice, 
by  reason  of  his  death.  If  we  go  further,  wo  make  the  notary  the  judge  of 
what  is  legal  notice  to  fix  the  indorser.  Now  what  is  legal  notice,  is  a 
question  of  law  for  the  court,  and  not  for  the  notary.  lie  should  note  tlie 
facts ;  when  he  gave  the  notice  ;  to  whom ;  the  mode,  &c.  These  are  facts, 


300  Hearsay  Evidence.  [Gh.   16, 

Eutries  re-  jt  jg  not  «ssential  to  the  reception  of  evidence  of  this 
er  available  description  that  no  other  evidence  can  be  given,  ex- 
lesiimoiiy.  (j^pj-  ji^^^t  which  is  offcrcd.  Tlius  it  was  observed  by  Tindal 
C.  J.,  in  Poole  v.  Dicas,  (2)  that  in  Doe  v.  Turford,  (3) 
there  might  have  been  persons  present  when  the  notice  was 
served,  and  that  in  the  principal  case  it  would  operate  as  a 
great  hardship  to  require  the  testimony  of  the  persons  who 
might  have  been  present.  The  clerk  who  presented  the  bill 
could  scarcely,  at  the  distance  of  two  years,  point  out  who  it 
was  that  answered  his  application,  and  if  it  were  necessary 
to  call  all  the  persons  who  resided  at  the  place  of  presentment, 
the  expense  and  inconvenience  Avould  be  enormous. 
[  *341  ]  *In  all  the  above  examples,  it  will  be  observed,  the  decla- 
rations were  made  with  reference  to  transactions,  the  knowl- 
edge of  which  would,  from  the  nature  of  them,  usually  be 
confined  to  a  few  persons,  and  the  declarants  might  be  said  to 
have  had  a  peculiar  acquaintance  with  the  facts  to  which  they 
spoke  ;  further,  the  declarations  were  connected  with  acts 
done  at  or  about  the  time  when  they  were  made  by  the  persons 
making  them,  so  that  they  might  be  regarded  rather  as  the 
ordinary  incidents  of  the  transactions  to  which  they  relate, 
than  as  narratives  of  them. 
Contempo-  The  necessity,  indeed,  of  the  declarations  being  contempo- 
uier"*  ^"'  raneous,  or  nearly  so,  with  the  transaction  to  which  they  re- 
late, appears  to  be  more  plainly  shewn  by  some  negative  ex- 
amples. Thus,  where  the  plaintiff,  in  order  to  prove  the  de- 
livery of  some  wine,  produced  a  book  which  belonged  to  his 
cooper,  who  was  dead,  but  whose  name  was  set  to  several  ar- 
ticles as  wine  delivered  to  the  defendant,  Lord  Raymond  would 
not  allow  the  evidence,  saying  that  it  differed  from  Lord  Tor- 
rington's  case,  because  there  the  witness  saw  the  drayman  sign 

(2)    1  Bing.  N.  C.  654,  and  vide  su-         (3)  Supra,  p.  339. 
]pra,  declarations  against  interest. 


and  his  record  -would  be  sufficient  to  prove  them ;  but  the  conclusion  of  the 
law,  whether  it  is  due  notice  or  not,  is  for  us  to  decide,  and  not  him.  If  the 
case  in  Wheaton  goes  as  far  as  it  appears  it  did  go,  it  has  not  my  appro- 
bation as  sound  law."  id. 

In  Welsh  v.  Barrett,  15  Mass.  380,  the  messenger  of  a  bank  made  minutes 
of  demands  made  on  the  makers  of  notes,  and  notices  given  to  indorsers ; 
and  he  being  dead,  these  were  admitted  in  evidence.  See  also  20  J.  R, 
]68  ;  and  the  later  case  in  16  Wend.  10,  where  the  subject  was  much  con- 
sidered. 

Entries  made  by  the  notary's  clerk,  who  is  alive  at  the  trial,  though  he  is 
out  of  the  jurisdiction  of  the  court,  and  cannot  be  found  on  diligent  inquiry, 
are  not  admissible.  6  Cowen,  162.  When  the  books  of  a  notary  have  been 
admitted  in  evidence  after  his  death,  the  entries  were  made  by  himself;  but 
when  they  are  made  by  his  clerk,  the  notary  does  not  attest  them ;  and  in 
that  case,  the  evidence  of  the  clerk  is  higher.  And  indeed  the  book,  un- 
accompanied by  his  testimony,  would  prove  nothing.    20  J.  R.  172 — 3^ 


Sect.  2.j  Declarations  of  Duty.  -^Ol 

the  book  every  night.(l)  In  Cliampneys  v,  Peck,{2)  mention- 
ed in  a  former  page,  Lord  Ellenborough  was  not  satisfied  with 
the  evidence  of  the  indorsement  of  a  deceased  clerk  to 
prove  the  time  of  the  delivery  of  an  attorney's  bill,  until  it 
had  been  shewn  by  extrinsic  evidence,  that  the  indorsement 
existed  at  the  time,  when  according  to  it's  purport  the  bill  had 
been  delivered.  And  in  the  case  of  Doe  d.  Pattershall  v. 
Tarford,  (3)  it  is  observed  by  one  of  the  Judges  to  the  effect, 
that,  in  the  case  of  declarations  against  interest,  the  time  of 
making  the  declaration  is  immaterial,  but  that  with  respect  to 
the  declarations  in  question  *it  is  essential  that  they  should  [  *342  ] 
be  contemporaneous.  (1)  In  Poole  v.  Dicas,  (2)  the  circum- 
stance of  the  entry  having  been  made  at  the  time  of  the  traas- 
action  was  considered  very  material. 

But  there  appears  to  have  formerly  existed  some  doubt  con-  Course  of 

DUSIIICSS* 

eerning  the  question,  whether  declarations,  apparently  made 
in  connection  with  transactions  of  which  the  declarant  has  pe- 
culiar knowledge,  but  not  in  the  ordinary  course  of  any  busi- 
ness or  employment,  or  which  it  is  not  the  declarant's  ordina- 
ry practice  or  duty  to  make,  were  receivable  in  evidence. 

In  Pykev.  Crouch,  (3)  indeed,  on  a  trial  at  bar,  it  was  re- 
solved, that  if  the  duplicate  of  a  will  be  written  by  the  direc- 
tion of  a  testator,  and  be  sent  by  him  to  a  stranger  to  keep  it 
safely,  and  the  stranger  sends  back  a  letter  to  the  testator,  in 
which  he  makes  mention  that  he  has  received  the  will,  after 
the  death  of  the  stranger,  such  letter  may  be  read  as  circum- 
stantial evidence,  to  prove  that  such  a  duplicate  of  a  will  was 
sent  by  the  testator  to  the  stranger. 

But  it  will  have  been  observed,  that  in  most  of  the  above 
cases,  great  stress  appears  to  have  been  laid  upon  the    circum- 

(1)  Clerk  V.  Bedford,  B.  N.  P.  282.  case  can  be  supported  as  to  this  point,  it 
The  reasoning  of  the  Lord  Chief  Justice  would  only  be  allowed  as  a  precedent 
supports  the  doctrine  of  the  admissibility  for  cases  where  the  circumstances  were 
of    contemporary    memoranda    in   the  precisely  similar. 

course  of  business.  (2)  1  Bing.  N.  C.  653. 

(2)  1  Stark.  C.  404,  supra,  p.  33S.  (3)  Lord  Raym.  730.  It  was  before 
In  some  of  the  earlier  cases  this  qualifi-  considered,  whether  the  letter  could  be 
cation  of  the  rule  does  not  appear  to  regarded  as  part  of  the  res  gesta.  It 
have  been  strictly  attended  to.  See  would  seem  that  tlie  letter  was  in  a 
Pitman  v.  Maddox,  and  Smart  v.  Wil-  slight  degree  an  adn)ission  against  inter- 
liams,  supra  p.  337.  est,  as  it  admitted  a    bailment.     But  the 

(3)  3  Barn.  &  Ad.  898.  evidence  appears  to  have  been  received 
(1)  The   Judges   said,  that  the   entry     simply  as  a  statement  made  in  the  course 

ought  to  be  proved  to  have  been  made  of  a  transaction,  the  knowledge  of  which 
at  the  lime  that  it  purported  to  bear  date,  was  confined  to  a  few  persons,  and  as  a 
and  when,  in  the  ordinary  course  of  bus-  letter  which  would  most  probably  have 
incss,  ^uch  an  entry  would  be  made,  if  been  written  if  the  will  had  really  been 
the  principal  fact  to  be  proved  had  re-  sent  to  the  stranger.  The  answer  wa8 
ally  taken  place.  The  case  of  Searie  u.  probably  consideied  as  the  natural  re- 
Lord  Barringlon,  infra,  p.  346,  appears  suit  of  the  fact  to  be  proved,  and  not 
at  variance  with  the  rule,  that  requires  merely  a  narrative  of  it  unconnected 
proof  of  an  entry  being  contemporane-  with  the  transaction. 
OQs.     But  it   is   conceived   that   if  that 


302  Hearsay  Evidence.  [Ch.   16. 

stance,  that  the  entries  admitted  were  such  as  were  customari- 
[  *343  J  ly  *made  ;  and  this  perhaps  is  to  be  imphed  in  all  the  cases 
ah-eady  noticed,  except  that  of  Pike  v.  Crouch,  (1)  which 
was  decided  at  a  time  before  the  principle  of  this  class  of  ca- 
ses had  been  much  considered.  («) 

In  the  case  of  Chambers  v.  Bcrnascojii,  (2)  on  a  question 
whether  the  plaintiff  had  committed  an  act  of  bankruptcy,  the 
case  mainly  turned  on  the  place  where  the  plaintiff  had  been 
arrested.  To  prove  the  place  of  arrest  a  certificate  was  pro- 
duced, signed  by  the  sheriff's  officer  who  made  the  arrest, 
and  who  was  since  dead,  in  the  following  terms:  "  9t!i  No- 
vember, 1S25,  arrested  A.  H.  Chambers,  in  South  Molton 
Street,  at  the  suit  of  William  Brereton."  (signed)  "  Thomas 
Wright."  It  appeared  that  the  sheriff's  officers  were  always 
required,  immediately  after  any  capture,  to  give  in  a  certificate 
of  it.  This  evidence  was  received,  but  upon  a  motion  for  a 
new  trial,  the  Court  of  Exchequer  thought  the  question  of 
the  admissibility  of  the  evidence  of  such  importance,  that 
they  wished  the  parties  to  have  an  opportunity  of  putting  it 
on  the  record.  The  question  of  the  admissibility  of  the  evi- 
dence involved  several  points  which  have  been  before  noticed. 
But  in  reference  to  the  point  under  consideration,  Mr.  Baron 
Bayley  expressed  his  opinion,  that  supposing  the  entry  admis- 
sible at  all,  on  the  ground  that  it  was  the  duty  of  the  sheriff's 
officer  to  make  the  return  ;  still  that  the  return  was  not  evi- 
dence as  to  the  place  of  arrest ;  it  not  being,  (at  least  at  the 
time  when  the  arrest  was  made)  a  necessary  part  of  the  offi- 
cer's duty  to  state  the  place  of  arrest.  From  which  it  may 
be,  perhaps,  inferred  to  have  been  the  learned  Judge's  opinion, 
r  *344  ]  that  if  no  part  of  the  *entry  had  been  in  the  course  of  official 
duty,  though  it  had  related  to  a  matter  transacted  at  the  time, 

(1)  See  particularly  by  Lord  Holt,  in  agent  usually  employed  in  such  business. 

Pitman  v.  IMaddox,  2  SalU.  690.     Clerk  was  entrusted    to  make   such  entries  by 

V.    Bedford,  B.  N.  P.    308.    3    Campb.  his  master,  and  that  it  was  the  course  of 

308,  n.  supra, p.  341;  and  by  Holt,  C.  trade." 

J.,  in  Smart  v.  Williams,  Comb.  24!^.  (2)  1  Cr.  &  J.  451  1  Tyr.  335. 
12  Vin.  Ab.  A.  b  15.  "The  book  of  a  From  the  report  in  Crompton  &  Jervis, 
man  that  keeps  re^w/ar  entries  might  be  p.  452,  it  appears,  that  the  practice  of 
evidence  for  him."  By  Lord  liardwicke,  requiring  the  officer  to  make  a  return  of 
in  Lefebure  v.  Warden,  2  Ves.  54,  "if  the  place  of  arrest  had  not  been  adopt- 
there  be  proof  that  he  was  the  servant  or  ed  in  1825. 

(a)  The  letters  of  a  deceased  agent  were  admitted  to  prove  a  demand  made 
upon  a  debtor  of  his  principal  in  a  foreign  country  where  there  was  no  regu- 
lar civil  government,  and  where  there  were  no  magistrates  or  notaries  to 
take  and  certify  affidavits,  or  regularly  to  authenticate  testimony  in  any 
manner.  Greenwood  v.  Curtis,  6  Mass.  358.  There  seems  to  be  a  com- 
mercial necessity  to  admit  evidence  of  this  nature  under  these  circum- 
stances, to  enforce  contracts  made  abroad  in  barbarous  or  uncivilized  coun- 
tries. 


Sect.  2.]  Declarations  of  Duty.  303 

and  of  which  the  officer   had   peculiar  knowledge,   it  must, 
without  question,  have  been  rejected. 

In  the  decision  upon  the  same  case  in  the  Court  of  Er- 
ror, (])  the  Court  observed,  that  the  ground  upon  which  the 
argument  was  first  rested,  viz.,  that  the  certificate  was  an  ad- 
mission against  the  interest  of  the  party  making  it,  because  it 
made  him  liable  for  the  body  arrested,  was  not  much  relied 
on.  But  recourse  Avas  had  to  a  much  broader  principle,  viz., 
that  an  entry  written  by  a  person  deceased  in  the  course  of  • 
his  duty,  where  he  had  no  interest  in  stating  an  untruth,  is  to 
be  received  as  evidence  of  the  fact  stated  in  the  entry,  and  of 
every  circumstance  therein  described,  which  would  naturally 
accompany  the  fact  itself.  Now  admitting,  for  the  sake  of 
argument,  that  the  entry  tendered  was  evidence  of  the  fact, 
and  even  of  the  day  when  the  arrest  was  made  (both  which 
facts  it  might  be  necessary  for  the  officer  to  make  known  to 
his  principal,  (still  it  was  not  receivable  to  prove  in  what  par- 
ticular spot  within  his  bailiwick  the  capture  took  place,  that 
circumstance  being  merely  collateral  to  the  duty  done.  And 
the  Court  were  of  the  opinion,  that  whatever  effect  may  be 
due  to  an  entry  made  in  the  course  of  any  office  reporting 
facts  necessary  to  the  performance  of  any  duty,  the  statement 
of  other  circumstances,  however  naturally  they  may  be 
thought  to  find  a  place  in  the  narrative,  is  no  proof  of  those 
circumstances. 

It  would  seem,  that,  in  general,  declarations    of  the   nature  Admissible 

T  -1  •  1?  1  1       •      -1  1      /•  •        •  •      for  whom. 

under  consideration  would  not  be  admissible  tor  parties  in  pri- 
vity with  the  persons  making    them.    (2)  («)     For  although 

(1)  Chambers  u.  Bernasconi,  1  Cr.  M.  Hardwicke,  in  Lefebure  r.  Warden,  2 
&  R.  367.  It  may  be  thought,  from  Ves.  54.  In  most  of  the  cases  relating 
the  report  of  the  case,  that  the  Court  ap-  to  written  entries,  the  entries  have  been 
pear  to  have  spoken  with  hesitation  con-  made  by  shopmen  or  agents,  and  in 
cerning  the  principle  of  the  class  of  ca-  Glynn  v.  Bank  of  England,  2  Ves.  43, 
ses  under  consideration.  Lord  Hardwicke  doubis  whether,  in  Sir 

(2)  In  Lord  Raym.  745.  Anon,  12  S.  Evans's  case,  supra,  p.  338,  the  en- 
Vin.  91.  A.  b.  25,  Lord  Holt  says,  that  tries  would  have  been  admissible  if 
shop-books  are  not  evidence  for  trades-  made  by  himself.  And  see  by  Lord 
men,  but  good  evidence  against  them,  or  Hardwicke  in  Lefebure  v.  Warden,  2 
for  a  strnnget ;  aud  see  12  Vin.  Ab.  88,  Ves.  54.  In  Doe  v.  Turford,  supra,  p. 
A.  b.  15.  Per  Holt,  Camb.  249,  in  339,  3  Barn.  &  Ado!.  89(),  the  person 
Smart  v.  Williams.  Lord  Hardwicke,  whose  indorsement  was  admitted,  acted 
in  Glynn  u.  Bank  of  England,  2  Ves.  43,  as  agent.  But  it  would  seem  that  the 
adverting  to  the  cases  of  tradesmen  and  circumstance  of  an  entry  being  made  by 
shop-books,  says,  there  is  no  instance  a  shopman  or  agent  is  not  a  necessary 
where  entries,  in  a  man'.s  own  hand,  qualification  of  the  rule  by  which  declara- 
have  been  admitted  after  any  length  of  tions  of  the  nature  in  question  are  admit- 
time   as  evidence.      And   see  by    Lord  ted. 

(a)  Parlies  in  privily.  There  are  four  kinds  of  privity  ;  privity  in  blood, 
as  between  heir  and  ancestor ;  privity  in  representation,  as  between  testator 
and  executor,  or  the  intestate  and  his  administrators  ;  privity  in  law,  as  be- 
tween the  Commonwealth  by  escheat,  and  the  person  dyinrr  last  seized  with- 
out blood  or  privity  of  estate ;  and  privity  in  estate  as  between  the  donor 


304  Hearsay  Evidence.  [Ch.   16. 

[  *345  ]  the  ^principle,  on  which  such  declarations  are  received,  does 
not  depend  on  the  future  use  of  the  declaration,  still  the  actu- 
al event  of  it's  being  made  available  for  persons  in  privity 
witli  the  maker,  would,  it  is  conceived,  in  general,  be  regarded 
as  proof  of  such  an  existing  motive  of  interest,  as  according 
to  the  terms  of  the  rule  would  exclude  the  evidence.  It  has 
been  seen,  in  the  case  of  Outrani  v.  Morewood,  that  entries, 
admitting  a  fact  adverse  to  the  interest  of  the  person  making 
them,  were  not  allowed  to  be  used  for  the  benefit  of  persons 
claiming  under  the  maker.  Although  no  general  rule  has 
been  laid  down  by  the  Courts  on  the  subject,  even  as  regards 
declarations  against  interest,  and  although  the  admissibility  of 
that  species  of  evidence  rests  on  a  different  kind  of  presumption 
from  the  evidence  under  consideration,  yet,  it  is  conceived, 
that,  in  both  instances  the  declarations  can,  in  general,  only 
be  made  use  of  by  strangers  in  interest,  (a) 

Indorse-  There  are,  however,  two    remarkable  decisions  respecting 

boiid.**'"  indorsements  of  interest,  in  which  it  appears  to  have  been 
held,  that  a  person's  own  declarations  in  the  course  of  busi- 
ness were  admissible  for  a  party  claiming  under  him,  or  suc- 
ceeding to  his  representative  title,  though  it  did  not  appear  by 
negative  evidence,  but  that  the  declarations  were  made  at  a 
time  when  they  might  have  been  made,  and  when,  if  made, 
they  would  have  promoted  the  interest  of  the  representatives 
of  the  maker.     It  is  proper  to  observe,  however,  that  the  in- 

[  *346  1  dorsements  in  these  cases,  have  by  great  authorities,  *becn  rep- 
resented simply  as  declarations  against  interest. 

In  an  action  on  a  bond,  (1)  brought  by  the  plaintiff  as  ad- 

(1)  Seatle  v.  Lord    Barrington,  2  Str.  obtained  in  July,  172.3;  the   first  action 

S26.  8  Mod.  279,  S.  C.   2  Lord  Raym.  was  tried    iiefore  Pratt,  C.  J.,   in  1724; 

1370,  S.  C   o  Brown,  P.   C.  535,  S.  C  the  second  action,  before    Raymond,  C. 

3  P.  Wrns.  397.   2  Eq.  Ca.  Ab.  414.  n.  .T.,  in    1726.     Tho  writ  of  error  in  the 

to  Ca.    16,    12  Vin.    Ab.   p.  85.     With  Exclieqiier    Chamber  was  in    1729;  and 

reference  to    this   case,  the  reader    is  re-  the  judi^ment  of  the  Exchequer  Chamber 

ferred  to   Glynn  v.   Bank  of   England,  2  was  alHrmed  on  appeal  to  the  House  of 

Ves.  42.     Turner  v.  Crisp,  2  Str.    827.  Lords  in     1730.     (8ee     the  Reports  in 

Rose  V.   Bryant,  2    Cambp.  323.     Bos-  Strange  and   Brown.)     The  time  of  the 

worth  V.    Cotchett.     Gieadon   v.  Atkin,  obligee's    death   is  not    stated  in  any  of 

infra.     The  dates  will  be  found  to  be  as  the  reports;  but  it  appears  that  adminis- 

follow: — The  bond    was  dated    in  June,  tration  of   his   etfeots    was  sued    out    in 

1697;  the  obligor    died     in    1710;  the  1723,  which  was  about  twenty-six  years 

plaintiff's  letters  of  administration  were  after  tiie  date  of  the  bond. 

and  the  donee,  lessor  and  lessee,  vendor  and  vendee,  assignor  and  assignee, 
&c.  Per  Kennedy,  J.,  in  Gibblehouse  v.  Strong,  o  Rawle,  437. 

(a)  Declarations  of  a  party  in  his  own  favor  may  be  given  only  in  those  cases 
in  which  from  the  nature  of  the  thing,  it  is  impossible  to  furnish  any  other 
evidence  of  the  fact.  2  Nott  &  M'C.  596.  For  instance  if  it  should  be- 
come a  question,  whether  a  party  knew  the  multiplication  table,  it  could  only 
be  established  by  hearing  him  repeat  it ;  what  he  has  said,  therefore,  must 
be  resorted  to,  to  prove  that  he  knew  it.  The  declarations  of  a  party,  made 
before  an  adverse  possession  was  taken,  as  to  his  intention  in  removing 


Sect.  2.]  Declarations  of  Duty.  305 

ministratrix  of  her  deceased  husband  (the  obligee)  against  the 
defendant  as  administrator  of  the  obHgor,  the  defendant  insist- 
ed on  the  length  of  time  that  had  elapsed  between  the  date  of 
the  bond  and  the  commencement  of  the  action,  which  was 
about  twenty-seven  years,  as  raising  a  presumption,  that  the 
money  had  been  paid  :  in  answer  to  this,  the  plaintiff  offered 
in  evidence  two  indorsements  on  the  bond,  (2)  in  the  hand- 
writing of  the  obligee,  one  dated  in  December,  1699,  the  oth- 
er in  March,  1707,  purporting,  that  the  whole  of  the  interest 
had  been  paid  up  to  the  time  of  these  dates.  The  Chief  Jus- 
tice Pratt,  before  whom  the  action  was  first  tried,  rejected  the 
evidence,  (3)  on  account  of  the  inconvenience  which  would 
arise  from  allowing  the  obligee,  in  whose  custody  the  bond 
always  remains,  to  make  such  indorsements,  whenever  he 
might  think  proper.  The  plaintiff  was  accordingly  nonsuit- 
ed. But  after  an  argument  in  the  Court  of  King's  Bench  ou 
a  case  stated  for  the  opinion  of  that  Court,  the  other  three 
Judges  held,  (4)  that  the  indorsements  in  question  ought  to 
have  been  left  to  the  consideration  ol  the  jury  ;  "for  the  jury 
(as  the  report  in  Strange  states)  niii^ht  have  reason  to  believe, 
that  it  was  *done  with  the  privity  of  the  obligor  ;  and  the  con-  r  #347  1 
stant  practice  is  for  the  obligee  to  indorse  the  payment  of  in- 
terest, and  that  for  the  sake  of  the  obligor,  who  is  safer  by 
such  an  indorsement  than  by  taking  a  loose  receipt."  And 
the  report  in  the  8th  Mod.  is  full  and  strong  to  the  same  effect. 
"  It  is  the  daily  practice  (says  that  report)  to  make  such  in- 
dorsements on  bonds,  and  generally  at  the  request  of  the 
obligor ;  and  this  is  the  best  and  surest  evidence  of  the  pay- 
ment of  the  money,  because  acquittances  and  notes  may  be 
lost,  whereas  indorsements  will  continue  as  so  many  brands 
on  the  bond,  into  whose  hands  soever  it  falls,  as  long  as  the 
original,  which  creates  the  charge,  shall  continue."  The 
nonsuit  was  not  set  aside,  because  at  that  time  there  was  a 
])revailing  notion,  that  as  the  plaintiff  had  been  put  out  of 
Court  by  the  nonsuit,  the  Court  could   not  order  a  new  trial. 

(2)  Sec  3    Brown,  P.  C.    593,  and  2     Mod. 

Lord   Ilaytn.    1370.  (4)  See  Report  in  Strange. 

(3)  See  the  Reports  in  Strange,  and  8 


from  llie  premises  may  be  given  in  evidence  in  his  favor,  on  the  traverse  of 
un  inquisition  of  forcible  entry,     o  Litt.  R.  .5. 

The  declarations  of  a  person  in  possession  of  land,  are-  admissible  to 
show  the  cliaracter  and  interest  of  such  possession,  notwithstanding  the 
statute  of  frauds.     2  Greenl.  II.  524.3. 

Whore  the  acts  of  a  person  can  be  given  in  evidence  for  him,  his  declara- 
tions in  relation  to  such  acts,  must  necessarily  be  admitted,  as  in  tiie  case  of 
■A  claim,  demand,  or  tender.  2  N.  Ca.  4.'{"2.  So,  any  act  or  declaration  of 
eitiier  party  connected  witli  the  transaction,  whether  prior  or  subsecjiient 
thereto,  may  be  given  in  evidence,  in  order  to  show  whiit  that  a^recmcut 
was.     1  Wend.  1!)!. 

39 


306 


Hearsay  Evidence. 


[Chap.   16. 


The  plaintiff  afterwards  brought  a  new  action,  which  was 
tried  before  Lord  Raymond  ;  and  the  same  indorsements  were 
again  offered  in  evidence,  to  repel  the  presumption  of  payment 
of  the  principal.  The  counsel  for  the  defendant  objected  to 
the  evidence,  (1)  on  the  ground,  that  it  did  not  appear  when 
those  indorsements  were  made,  otherwise  than  by  the  indorse- 
ments themselves.  But  Lord  Raymond  was  of  opinion,  that 
the  indorsements  were  evidence  to  be  left  to  the  considera- 
tion of  the  jury,  and  therefore  allowed  them  to  be  read  ;  and, 
(as  one  report  states)  otJicr  circumstantial  evidence  being  giv- 
en to  induce  the  jury  to  believe,  that  the  bond  had  not  been 
satisfied,  (2)  the  plaintiff  had  a  verdict.  The  defendant's 
counsel  tendered  a  bill  of  exceptions,  which  was  sealed  by 
the  Chief  Justice  ;  and  a  writ  of  error  was  brought  in  the 
Exchequer  Chamber.  The  errors  were  twice  argued  in  the 
Exchequer  Chamber,  and  the  judgment  of  the  Court  of  King's 
Bench  was  affirmed.  (3)  A  writ  of  error  was  then  brought  in 
the  House  of  Lords ;  and  after  counsel  had  been  heard  on 
this  writ  of  error,  and  the  Judges  had  delivered  their  opinions 
[  *348  ]  seriatim,  the  House  of  Lords  *affirmed  the  judgment  of  the 
Exchequer  Chamber.  The  grounds  of  the  decision  in  the  Ex- 
chequer Chamber,  and  in  the  House  of  Lords,  do  not  appear 
inany  of  the  reports.  (1)  [n) 


(1)  See  Report  in  Brown. 

(2)  See  tjiown's  Report. 

(3)  According  to  the  Report  in 
Strange,  five  judges  tlionght  the  evidence 
admissible, — two  were  ol  tlie  contrary 
opinion.  The  Report  in  Brown  iitates, 
tliat  the  judgment  was  aflirriied  by  the 
opinion  of  all  the  judges. 

(1)  Upon  the  argument  in  the  case 
of  Bosvvorth  v.  Cotchett,  Lord  Eldon 
directed  the  record  in  Searle  ;■.  Lord 
Barrington  to  be  examined,  and  it  ap- 
peared that  there  was  no  mention  of  any 
circumsiances  to  shew,  that  ihe  indorse- 
ments were  made  before  the  presumption 
of  payment  could  have  arisen.  'l"he  time 
of  the  death  of  the  obligee  does  not  ap- 
pear to  have  been  proved.  It  appearsfrom 
a  note  in  Brown's  re|)orts,  that  !Mr.  B. 
Comyns  was  for  revising  the  judgment; 
and  that  Loid  Raymond,  Ch.  >T.  Mr.  Jus- 
tice Eyre,  and  Mr.  Justice  Probyn  were 
absent.  The  observation  of  the  Court, 
that  the  jury  might  have  reason  to  be- 
lieve that  the  indorsement  was  made 
with  tiie  privity  of  the  obligor,  shows 
the  loose  ideas  on  the  subject  of  evi- 
dence which  prevailed  at  the  period  of 
the  decision.  In  Glynn  v.  Bank  of  Eng- 
land, 2  Ves.  43,  Lord  I  fardvvicUe  states, 
that  he  considers,  that  in  Searle  v.  Lord 


Barrington,  the  indorsements  were  made 
within  the  twenty  years.  Some  credit 
appears  to  have  been  given  to  a  presump- 
tion that  the  indorsements  were  within 
time,  from  tlie  fact  of  their  appearing 
to  be  so  by  their  date,  vide  by  Lord 
HardwicUe,  ib.,  and  Turner  v.  Crisp, 
2  Str.  827.  But  if  there  had  been 
no  date  at  all,  the  probabiliiy  of  a 
person  fabricating  the  entry  would  not 
have  been  stronger  than  that  of  a  per- 
son fabricating  a  date.  Lord  Ilard- 
wicUe,  2  Ves.  43,  seems  to  have  consid- 
ered that  the  declarations  of  an  individ- 
ual might  be  available  for  his  representa- 
tives, when  they  were  originally  against 
his  interest;  and  when  it  is  only  by  the 
consequential  use  of  them,  that  his  prop- 
erty is  benetiied.  But  this  assumes  a  pos- 
itive sacrifice  of  interest  to  be  proved  in 
the  lirst  instance,  and  in  the  next  place 
an  absence  of  any  contemplation  of  a 
greater  future  benefit.  Lord  Ilardwicke, 
however,  lays  it  down  as  a  fundamental 
rule,  that  a  man  shall  not  be  permitted 
to  make  evidence  for  himself;  and  on 
this  ground,  that  a  list  of  bank  notes,  in 
the  testator's  handwriting,  was  inad- 
missible for  his  representatives,  to  prove 
the  fact  of  his  having  been  formerly  in 
possession  of  the  notes. 


(a)  In  Rosebroom  v.  Billington,  17  J.  R.  182,  it  was  decided,  that  an  endorse- 
ment on  a  bond  or  note,  made  by  the  obligee  or  promisee,  without  the  privity 


Sect.  2.]  Declarations  of  Duty.  307 

The  case  of  Searle  v.  Lord  Barrins'ton,  has  been  followed  i'>o'o"e- 

~  niciit  'on 

by  that  of  Bosworth  and  Parr  v.    Cotchett,  determined  in  the  note. 

House  of  Lords.  (2)     In  that  case  the  payee  of  a  promissory 

note  had  written  indorsements  of  the  half-yearly  payment  *of  [  *349  ] 

interest,  from  the  time    of  making  the    note    till    his   death 

(which  happened  within  six  years  of  the  date  of  the  note)  and 

the  like  indorsements  had  been  written  by  his  executor  (who 

died  before  the    commencement  of  the    action)  ;    and  it  was 

adjudged,  that  these  indorsements  were  admissible  in  evidence 

in  answer  to  a  plea  of  the  statute  of  limitations  ;  though  there 

was  no  extrinsic  evidence  oifered   of  the  time   when  the    in- 

dorsments  were  made,  and  though   more  than    six  years  had 

elapsed  between  the  death  of  the  maker  of  the  note,  and  that 

of  the  executor. 

In  the  case  of  GleadonY.  Atkin^  (1)  it  was  held  that  an  in- 
dorsement upon  a  bond  in  the  handwriting  of  the  obligee, 
which  appeared  to  have  been  made  at  or  about  the  time  when 
the  bond  was  executed,  but  which  was  not  proved  to  have 
been  ever  seen  by  the  obligor,  stating  that  the  bond  was  giv- 
en to  the  obligee  in  trust  for  a  third  person,  was  admissible  in 
evidence  to  connect  the  payments  of  interest  with  the  bond, 
the  bond  being  upwards  of  twenty  years  old,  but  interest  hav- 
ing been  paid  within  twenty  years  by  the  obligor  to  the  third 
person.  The  authorities  of  Searle  v.  Lord  Barrington^  and 
Bosioorth  and  Cotchett,  were  relied  on  in  the  decision  of  the 
Court,  and  Bayley  B.,  observed,  that  he    had  discovered   by 

(2)  Tried  at  LeicesterSum.  ASS.  1819,  respecting  the  privity  of  the  obligator, 
before  Richards,  Ch.  B.  Judgment  in  the  the  ground  of  the  decisions  appears  to 
House  of  Lords,  dh  May,  1824.  By  have  been  the  inference  to  be  drawn 
the  Stat.  9  Geo.  4,  c.  14,  it  is  enacted,  from  the  ordinary  course  of  business, 
that  "  no  indorsement  or  memorandum  The  usual  course  of  business,  indeed, 
of  payment,  written  or  made,  by  or  on  proves,  that  ivhen  interest  is  paid,  such 
behalf  of  the  party  to  whom  such  piiy-  is  the  usual  way  of  receipting  it,  and 
ment  should  be  made,  shall  be  deemed  that  is  all.  In  the  absence  of  all  evi- 
sutEcient  proof  of  such  payment,  so  as  dence  to  the  contrary,  an  indorsement 
to  take  the  case  out  of  the  statute  of  on  a  promissory  note,  adniitting  the  re- 
limitations."  In  this  case  and  in  that  of  ceipt  of  interest,  will  be  presumed  to 
Searle  v.  Lord  Barrington,  (the  principle  have  been  made  at  the  time  it  bears 
of  which  appears  to  be  condemned  by  date,  see  Smith  v.  Baltey,  1  JNL  &  Ro. 
the  Slat,  of  9  Geo.  4,  c.  14,)  notwith-  341. 
standing  what  is  said  in  the  latter  case,         (1)  Cr.  S:  M.  410. 

of  the  debtor,  cannot  be  admitted  as  evidence  of  payment  in  favor  of  the 
party  makinjr  such  endorsement,  unless  it  be  shown  that  it  was  made  at  a 
time  when  its  operation  woukl  bo  against  tlie  interest  of  the  party  rnakinnf 
it  If  such  proof  be  given,  it  would  bn  good  evidence  for  the  consideration 
of  the  jury.  See  tlie  observations  of  Ch.  J.  Spencer;  and  see  also  tiie  caso 
of  Clap  V.  IngersoU,  2  Fairf.  R.  83,  whicli  upholds  the  same  j)rinciple. 

Where  a  receipt  of  money  is  endorsed  on  a  bond  by  the  jilaintifl',  it  can- 
not be  made  the  ground  of  inferring  an  acknowledgment  by  the  defendant 
of  the  existing  validity  of  the  bond,  and  a  promise  to  pay  it,  without  clear 
proof  that  the  payment  was  made  by  the  authority  or  at  the  request  of  tho 
defendant.    Tooker  v.  Doanc,  2  Hail,  532. 


308  Hearsay  Evidence.  [Ch.   16. 

his  own  research,  that  in  Stearic  v.  Lo7-d  Barrington,  evi- 
dence was  given  of  the  time  when  the  indorsements  were 
made,  though  it  is  not  stated  in  the  reports.  The  Court  ap- 
pears to  liave  considered  these  two  decisions  as  well  as  the 
case  before  them  to  fall  within  the  principle,  treated  of  in  the 
first  section  of  this  chapter,  that  the  declarations  of  a  person 
liaving  peculiar  means  of  knowledge,  having  no  interest  to 
misrepresent  and  making  a  declaration  against  his  interest  are 
admissible  in  evidence  after  his  death. 

It  has  been  held,  that  where  indorsements  of  receipts  of 
part  of  a  bond  were  proved  to  have  been  made  after  the  pre- 
sumption of  jiayment  had  taken  place,  they  were  inadmissi- 
[  *350  ]  ble.  (2)  *And  further,  it  has  been  held,  that  if  a  defendant  pro- 
duces direct  evidence  of  payment  of  a  principal  sum  and  in- 
terest at  a  certain  time  within  twenty  years,  the  plaintiff  can- 
not be  allowed  to  encounter  that  evidence  by  an  indorsement 
in  the  handwriting  of  the  obligee,  purporting  that  interest  and 
part  of  the  principal  Avere  paid  at  a  subsequent  time;  on  the 
ground,  that  supposing  the  fact  to  be  true,  that  the  bond  had 
been  satisfied  by  payment  it  would  obviously  be  to  the  advan- 
tage of  the  obligee  to  make  such  an  indorsement  which  might 
afterwards  be  used  as  evidence  in  an  action  on  the  bond.  (1) 
Lord  EUenborough,  in  this  case  observed,  that  he  was  at  a 
loss  to  see  the  principle  on  which  such  receipts  in  the  hand- 
writing of  a  creditor  had  sometimes  been  admitted  as  evidence 
against  the  debtor,  and  that  he  was  of  opinion,  that  they 
could  not  properly  be  admitted,  unless  they  were  proved  to 
have  been  written  at  a  time  when  the  effect  of  them  was 
clearly  in  contradiction  to  the  writer's  interest.  (2) 

The  statute  7  Jac.  1,  c.  12,  enacts,  that  the  shop-book  of  a 
tradesman  shall  not  be  evidence  in  any  action  for  wares  de- 
livered, or  work  done,  above  one  year  after  the  bringing  of 
the  action,  except  the  tradesman  or  executor  shall  have  ob- 
tained a  bill  of  debt  or  obligation  of  the  debtor  for  the  said 
debt,  or  shall  have  brought  against  him  some  action,  within 
a  year  next  after  the  delivery  of  the  wares  or  work  done. 
And  the  second  section  provides  that  nothing  in  the  act  shall 
extend  to  the  mutual  trading  and  merchandize  between  trades- 
man and  tradesman.  At  the  time  of  making  that  act  of  par- 
liament,  there  was  an  opinion  growing  up,  that   after  a  cer- 

(2)  Turner    ».    Crisp,  2   Str.    827.  (2)    Lord    EUenborough    appears    to 

The  Chief  Justice  saying,  that  it  differ-  have  considered   that  sucn  endorsenients 

ed  from  the  case  of  Searle  r.  Lord  I5ar-  were     oniy    evidence     as    declarations 

rington,  where  the  indorsennents  appear  against    interest.     Tlie    limitation   of 

to  have  been  made  before  they  could  be  actions  on  bonds  is  now  provided  for   by 

thought  necessary  to  be  made  use  of  to  stat.  3  &  4  W.  4,  ch.    42.     The   cases 

encounter  the  presumption.     And  see  by  in  the  text  refer   to   the  presumption   of 

Lord  Hardwici<e,  in  Ulynn  t .   Bank   of  payment,    before  the  statute,    where  no 

England,  2  Yes.  43.  demand   had   been   made    for    twenty- 

(l)  Rose  V.  Bryant,   2  Camp.   321.  years. 


Sect.  2.]  Deelarations  of  Duty.  309 

tain  length  of  time,  a  man's  shop-books  would  be  evidence  for 

him  after  the  year,  to  prevent  which  the    act  was    made.  (3) 

But  it  appears  by  several  authorities,  that    shop-books  alone, 

unless  under  the  *circumstances  which  have  been  noticed,  are  [  *351  ] 

not  admissible  evidence  either  within  or  after  the  year.  (1)  (a) 

(3)  By  Lord  Hardwicke,  2  Ve3.  43.  Vin.  Ab.  Ev.  SS.  A.  b.  15,  "Bonks." 
(1)  B.  N.  P.  282.  In  Pitman  v.  .Sriiarile  c.  Williams,  Comb,  249.— 
Bladdox,  2  Salk.  69.  In  Price  v.  Lord  lilacUeIn  r.  Crofts,  Comb.  348.  Lee  r. 
Torringlon,  1  Salk.  285  Lord  Raym.  Lee,  Keb.  27,  in  pi.  08.  Cary's  Hep. 
7.32,  745.  In  Sikes  v.  Marshall,  2  Esp.  45.  Crouch  v.  Drury,  Keb.  27,  pi.  78. 
705,  745.  Lord  Kenyon,  says,  that  See  further  as  to  tradesmen's  books, 
since  the  statute  of  .lames,  sliop-books  Digby  v.  Stedman,  1  Esp.  328.  Cow- 
are  not  evidence  after  ilie  year.  And  per  v.  Marsden.  1  Esp.  1. 
further    respecting    shop-books,  see    12 


(a)  See  12  J.  R.  461  ;  and  see  ante  p.  121—128,  n.  In  Linnell  v.  Suther- 
land, 11  Wend.  568,  the  books  of  a  mechanic  were  admitted  to  prove  liis 
account;  it  Jiaving  first  been  shown  that  he  kept  fair  and  honest  books,  and 
that  during  the  accruing  the  account,  the  plaintiff  kept  no  clerk. 

In  the  New  England  states,  the  plaintifi"  is  permitted  to  produce  bis  ac- 
count books  in  court,  and  make  his  supplementary  oath  respecting  the 
charges.  .3  Pick.  109.  But  the  books  must  appear  to  contain  his  first  en- 
tries or  charges,  made  at  or  near  the  time  of  tlie  transaction  to  be  proved. 
2  Mass.  221 ;  3  N.  H.  R.  15G;  13  Mass.  427. 

A  mutilated  piece  of  paper,  which  appeared  to  have  been  torn  out  of  a 
book,  in  which  the  name  of  neither  the  plaintiff  nor  the  defendant  appeared, 
which  contained  no  charges  against  the  defendant,  and  wjiich  was  unintelli- 
gible without  explanation  from  the  plaintiff,  was  held  not  to  be  admissible 
as  a  book  of  original  entries.  4  Rawle,  2!J1 ;  9  S.  &  E..  28.5.  The  princi- 
ple of  these  cases,  is,  that  a  minute  intended  not  to  be  itself  the  evidence  of 
a  sale,  but  to  be  used  in  the  preparation  of  such  evidence,  is  not  an  original 
entry  within  the  meaning  of  tiie  term  as  it  is  used  in  the  books.  The  ma- 
terial on  which  it  is  written,  is  indifferent.  If  made  on  a  card  and  thence 
transcribed  into  a  boo.k,  the  latter  is  nevertheless  admissible.  Palton  v. 
Ryan,  4  Rawle,  408. 

The  competency  of  the  evidence  is  for  the  court;  its  credit  for  the  jury. 
2  Mass.  217.  If  the  entries  are  made  by  the  parly  himself  in  the  leger 
form,  they  are  to  be  received  with  caution  ;  especially  where  the  business 
of  such  party  requires  many  entries  in  a  day,     13  Mass.  427. 

The  books  of  a  printer  are  admissible  to  prove  his  account  for  advertising 
and  the  delivery  of  his  newspaper,  when  he  has  no  better  evidence  in  his 
power.  1  N.  &  M'Cord,  18G.  In  the  case  of  advertisements,  the  paper 
should  also  be  produced  to  show  the  performance  of  the  work. 

The  books  of  a  schoolmaster,  were  rejected,  2  M'Cord,  828. 

If  the  book  contains  various  charges,  and  some  are  for  money  lent,  they 
are  evidence,  but  not  conclusive.  2  Hals.  34.5.  But  see  the  case  of  Case 
V,  Potter,  8  J.  R.  1G3,  where  the  plaintifTs  book  of  original  entries  was  held 
to  be  inadmissible  for  that  purpose. 

If  the  article  charged  on  the  book  appears  to  be  delivered  to  a  third  per- 
son, the  book  is  not  competent  to  prove  the  delivery.  3  N.  H.  R.  1.50.  A 
tailor's  book  was  not  admitted  to  prove  a  verbal  order  of  the  defendant.  1 
N.  &  M'  C.  43G. 

A  regular  book  is  not  indispensible  to  the  plaintiff's  recovery  ;  though  the 
omission  to  make  such  charges,  is  presumptive  evidence  again.st  the  de- 
mand. In  Palmer  v.  Green,  G  Conn.  14,  tlie  plaintifl"'s  testator  never  made 
any  charge  on  book  against  the  defendants ;  but  at  the  trial,  the  latter  pro- 
duced their  book,  and  upon  this,  the  items  of  the  plaintifTs  demand  were 
credited  ;  and  it  was  held,  that  the  plaintiff  was  entitled  to  recover. 


310  Hearsay  Evidence.  [Ch.   16. 

It  will  appear,  in  the  cases  before  mentioned,  relative  to  de- 
clarations against  interest,  and  in  the  cases  which  have  been 
snbseqently  considered,  that  the  declarations  were  those  of 
persons  deceased  ;  the  necessity  for  this  circumstance  being 
proved  will  be  considered  more  particularly  in  the  part  of  the 
work  which  treats  of  the  subject  of  primary  and  secondary 
evidence.  (2)  It  has  been  held,  that  the  entries  of  a  person 
still  living  against  his  interest  are  not  evidence  between  other 
parties,  though  it  be  shewn  that  he  is  abroad,  having  abscon- 
ded from  a  criminal  charge,  and  though  it  be  altogether  out  of 
the  power  of  the  party  to  produce  him  as  a  witness.  (3)  It  is 
also  requisite,  that  where  the  declarations  are  in  the  nature  of 
written  entries,  they  should  be  produced  from  the  proper  cus- 
tody. This  circumstance,  which  is  essential  for  their  authen- 
tication, is  particularly  considered  in  that  part  of  the  work 
which  treats  of  the  proof  of  written  evidence.  (4) 

(2)  The    necessity   for    proving    the  tomer  had  no  funds  in    his  the   banker's 

death  of  the   declarant  is  a    criterion  for  hands,  on  account  of  the    inconvenience 

distinguishing  declarations    against    inte-  of  calling  all  the   clerks    of  the    house  ; 

rest,  or  in  the  course  of  business  for  de-  it  was  said  that  it  might  not  be    admissi- 

clarations  which  are  part  ot  the  res  acs-  ble  to  prove  the  alfirmative. 

t(E.  and  such  as  are  in   the  nature  of  ad-  (3)   Stephen  v.  Gwenap,  2  M.  &  Ro, 

missions,  between  which  it  is  often  diffi-  120,    and   see    Harrison  r.    Blades,    3 

cult  to  discriminate,  see  VVooley  v.  Roe,  Camp.  457,  incapacity    to  attend  from 

1  N.  &  Glen.  114.     In  Furnessu.  Cope,  illness,  Manby  v.  Curtis,    1  Price,   282. 

6  Ijing.  114,  a  banker's  ledger   was   re-  Cooper  r.  Marsden,  1  Esp.  2. 

ceived  in  evidence  to  show    that  a   cus-  (4)      Vide  infra,  part  2. 


The  books  of  the  defendant  are  not  adtnissible  to  prove,  that  he  received 
the  jjoods  which  the  plaintiti  claims  to  recover  as  for  goods  sold,  on  sale. 
1  Yeate's  R.  198. 

When  the  charges  are  made  by  a  clerk  who  is  out  of  the  state,  it  has 
been  held  sufficient  to  prove  the  hand  writing  of  the  clerk.  2  M'  Cord,  349. 
The  clerk  may  be  examined  on  commission  to  prove  the  correctness  of  the 
charges  ;  but  the  party  himself  cannot  be  so  examined.     2  M'Cord,  428. 

The  book  of  a  teller  in  a  bank  is  not/J-jr  se  evidence  to  establish  the  facts 
appearing  in  it,  but  it  is  admissible  in  evidence  in  connection  with  the  oath 
of  the  teller  himself.  5  Rand.  QQii.  So,  the  book  kept  by  a  book-keeper  in 
a  bank  must  be  verified  by  his  oath.  2  M'Cord,  157.  Entries  made  by  a 
clerk  in  the  books  of  trustees,  a  corporation,  by  the  direction  of  the  trustees 
are  not  admissible  even  with  the  evidence  of  the  clerk  who  made  them,  in 
an  action  in  which  such  trustees  are  interested.    3  J.  R.  225. 

Corporation  books  are  not  admissible  without  proof  of  their  being  the  books 
of  the  corporation,  and  that  they  have  been  regularly  kept.  10  J.  R.  154, 
See  6  VVend.  051,  as  to  the  evidence  to  prove  the  acts  of  a  municipal  cor- 
poration. 


Ch.   17.]  Other  Exceptio7is  to  the  Rule.  311 


^CHAPTER  XVII.  [  *352  ] 


OTHER  EXCEPTIONS    TO    THE     RULE    WHICH     EXCLUDES      HEARSAY 

EVIDENCE. 


An  exception  to  the  rule  excluding  hearsay  evidence,  of 
great  practical  importance,  exists  in  the  case  where  particular 
facts  have  been  inquired  into  by  public  authority.  Some  of 
the  inquiries  alluded  to  have  been  made  by  persons  on 
their  oaths  ;  some  have  been  made  by  persons  not  sworn 
themselves,  but  who  have  received  their  information  upon 
oath  ;  some  have  neither  of  these  guarantees  for  their  accu- 
racy. / 

Analogous  to  the  exception  just  mentioned,  is  one  which  in- 
cludes numerous  instances,  where  credit  is  given  to  statements 
on  account  of  the  authority  and  peculiar  knowledge  of  the 
person  making  them,  or  of  their  official  and  public   character. 

There  are  also  various  statutory  exceptions,  whicii  relate, 
in  general,  to  inquiries  of  public  concern,  and  where  due  care 
is  taken  to  provide  for  the  accuracy  and  fidelity  of  the  state- 
ments. 

As  the  evidence,  which  is  the  subject  of  these  exceptions, 
is  chiefly  of  a  nature  depending  on  the  character  of  particular 
documents,  the  plan  of  the  work  requires  that  the  considera- 
tion of  it  should  be  postponed  until  the  subject  of  written  ev- 
idence is  treated  of  The  principal  public  documents  which 
are  used  in  evidence  will  be  noticed  in  the  second  part,  and 
the  effect  of  each  will  be  explained,  whether  as  supplying 
hearsay  evidence  receivable  in  Courts  of  Justice,  or  as  opera- 
ting in  other  ways.  It  has  been  impossible  to  avoid  altogeth- 
er anticipating  the  subject  of  public  documents  in  the  preced- 
ing chapters,  particularly  as  regards  the  evidence  of  deposi- 
tions, verdicts,  and  other  public  documents  in  matters  of  ped- 
igree and  upon  questions  *of  public  right,  and  it  has  been  [  *353  ] 
thought  advisable  to  collect  in  these  chapters  the  whole  of 
the  information  respecting  the  effect  of  private  writings,  as  far 
as  they  regard  the  doctrines  of  hearsay  evidence. 

It  remains  to  notice  those  exceptions  to  the  rule  excluding 
hearsay  evidence,  which  are  founded  upon  considerations  per- 
sonal to  the  party  who  is  to  be  affected  by  the  evidence. 

It  has  been  held,  that  the  testimony  of  a  deceased  witness, 
who  has  been  examined  upon  oath,  on  the  trial  of  a  former  ac- 
tion between  the  same  parties,  and  where  the  point  in  issue  is 
the  same  as  in  the  second  action,  is  admissible  on  the 
trial    of  the    second    action,    and    may   be   proved    by   one 


212  Hearsay  Evidence.  [Ch.   17. 

who  heard  him  give  evidence.  (!)(«)  And,  where  a  person, 
Avlio  had  been  sworn  on  a  former  trial  between  the  same  par- 
ties on  the  same  issne,  and  subpoenaed  to  appear  as  a  witness 
at  a  second  trial,  did  not  appear  in  obedience  to  the  writ,  the 
Court  of  King's  Bench,  seeing  reason  to  believe  that  he  had 
been  kept  away  by  the  contrivance  of  the  adverse  party,  ad- 
mitted other  witnesses  to  prove  what  he  had  sworn  on  the 
former  occasion.  (2) 

It  has  recently  been  held,  that  where  a  witness  has  been 
examined  in  a  suit  in  which  A.  and  others  were  plaintiffs  and 
B.  defendant,  his  examination,  after  his  decease,  may  be  ad- 
duced by  B.  in  an  ejectment  brought  by  him  against  A.  alone  ; 
for  the  lessor  of  the  plaintiff  is  the  real  party  in  an  ejectment, 
[  354  I  and  A.  *had  the  same  power  at  the  former  trial  of  objecting 
to  the  competency  of  the  witness,  and  the  same  right  of  cross- 
examination  and  of  calling  witnesses  to  contradict,  or  discred- 
it his  testimony,  as  he  would  have  had,  if  the  witness  had 
been  alive  and  subpoenaed  on  the  second  trial.  It  was  also 
held,  that  the  evidence  was  producible  in  the  cause  for  the 
same  purpose,  and  to  the  same  extent,  as  if  the  witness  had 
been  alive  and  given  his  evidence  ;  consequently,  that  where 
the  witness  Was  one  of  the  attesting  witnesses  to  a  will,  his 
evidence  at  the  former  trial  was  sufficient  proof  of  the  Avill, 
and  the  evidence  of  the  surviving  witness  was  not  better  evi- 
dence, (1)(^') 

It  seems  that  the  exception  would  apply,  where  the  parties 
to  the  first  trial  were  represented  on  the  second  occasion  by 
persons  who  had  succeeded  to  them  by  privity  of  law,  of 
blood,  or  of  estate,  and  that  the  rule  upon  the  subject  is  in 
this  respect  analagous  to  that  which   prevails  in    the  case    of 

(1)  Rex  v.   Carpenter,    2  Show    47.  handwriter's   notes  of  the   evidence   of 

BucUwnrth's  case,    SirT.   Rayin.    170.  living  vvilnesses  is  not  receivable.      Wii- 

Vin.  Ab.  Evidence.    (T.  b.    88,    pi.  4.)  lianis  r.  Taylor,   3  M.  3,-  \\  350.     As  to 

Coker    v  .  Farewell,    2    P.    Wins.    569.  Judges'  notes,  see    Crease    r.    Barrel,  1 

Tike  ».    Crouch,!    Lord    Raym.    7.30.  Tyr.  &  Gr.  112.     From  analogy  to   (he 

By  Lord  Kenyon,  4  T.  11.    290.     May-  law  as  to    depositions  before  magistrates, 

or  of  Doncaster  v.  Day,  3   Taunt.  262.  it  would  seem  that  the  same  rule    would 

iStrutt  V.  Bovinglon,  h  Esp.  57.     1  Star-  apply  in  new  triuls  of  indictments  remo- 

kie,  2ll,n.     Notwithstanding   there    is  \&iihy  certiorari. 

the  usual  order  in  equity  for    reading  de-         (2)   Green  r,  Gaturk,  B.  N.    P.    243. 
positions,  Todd  v.  Winchelsea,    3  C.  &         (1)  Wright  v.  Doe  d.  Tatham,  1  Ad. 

P.  387.     See  Doe  d.  Lloyd  r.    Passing-  &  Ell.  21. 
ham,  2  C.  4'  P.    440.     That  the  short- 

[a]  Point  in  issne  mii.it  he  the  same.  See  Melvin  v.  Whiting,  7  Pick.  79; 
Jackson  v.  Crissey,  3  Wend.  251 ;  6  Cowen,  l(i2. 

{b)  Where  the  witness  on  the  trial  was  used  by  defendant,  but  his  testi- 
mony was  in  favor  of  plaintiff,  who  sou^jht  to  use  his  testimony  in  a  subse- 
quent trial ;  in  the  mean  time  the  witness  having  deceased  :  but  the  de- 
fendant having  shown  the  interest  of  the  witness  at  the  time  of  giving-  his 
teatimonv  on  the  former  trial,  his  evidence  was  rejected.  Ciary  v.  Sprague, 
12  Wend.  4L 


Ch.   17.]  OtJier  Exceptions  to  the  Rule. 

estoppels  by  judgment,  the  admissibility  of  verdicts,  and  the 
effect  of  admissions.  (2) 

It  has  been  said,  that  the  person,  called  to  prove  what  a 
deceased  witness  said  on  the  former  trial,  must  undertake  to 
repeat  precisely  his  very  words,  and  not  merely  to  swear  to 
their  effect.  (3)  [a]  This,  it  is  conceived,  can  only  mean,  at 
the  furthest,  that  he  must  be  able  to  speak  to  the  identical 
words  of  the  former  witness,  when  it  is  essential  that  the 
very  identical  words  should  be  known.  In  some  cases,  proof 
of  the  substance  of  the  former  evidence  may  be  as  satisfactory 
as  proof  of  the  identical  words,  unless  the  witness  can  under- 
take (what  is  not  possible)  to  deliver  the  same  words  precise- 
ly with  the  same  maimer  and  in  the  same  tone.  (4) 

*The  evidence  in  such  case  is  of  a  different  character  from  [  *355  ] 
any  which  has  been  hitherto  considered  ;  for  not  only  is  it  free 
from  the  objections  of  being  extra-judicial,  and  not  taken  up- 

(2)  See   Doe   d.    Foster   v.   Earl  of    own  notes. 

Derby,  1  Ad.  &    Ell.    790,    where    the  (4)  On  an  indictment  for    perjury,  it 

evidence    was    rejected    on    the   ground  is  suiHcient  if  a  witness  stales   froiTi    re- 

that  the  two  trials  were  not  substantially  collection,  the  evidence    which    the   de- 

between  the   same    parlies.     'J'he    deci-  fendant  gave,  though  he  cannot  say  with 

sions  as  to   depositions,  and  as  to  verdicts  certainty,  that  it  was  all  the  evidence  the 

and  adn)issions,  infra.  defendant  gave,  if  he  can  say  with  cer- 

(3)  Lord  Palmerston's  case,  cited  by  tainty  that  it  was  all  he  gave  on  that 
Lord  Kenyon,  in  Rex  r.  .lolille,  4  T.  point,  and  that  there  was  nothing  to  qual- 
R.  296.  Ennis  v.  Donnisthorne,  Corn,  ify  it,  Rex  v.  Rowley,  1  Mo.  Cr.  Ca. 
Sum.  Ass.  1789,  by  Lord   Kenyon,   cit-  111,  and  cases, i&. 

ing  Rex  r.    Deboragh    from    one   of  his 

(a)  Venj  words.  See  (3  Co  wen,  162,  where  tlie  court  supposed  it  was  ne- 
cessary for  the  witness  to  repeat  tlic  very  words.  But  the  better  opinion  is, 
that  it  is  sufficient  if  tlio  witness  can  give  the  substance;  5  Rand.  3'3;  pro- 
vided there  is  no  equivocation  or  ambiauity.  See  Cornell  v.  Green,  10  S. 
&  R.  16;  Crary  v.  Sprague,  12  Wend.  45;  It  must  be  the  words  or  the  sub- 
stance ;  the  whole  must  be  given — all  or  none.     3  Dev.  &  B.  4()(J. 

In  Chess  v.  Chess,  17  S.  &  R.  400,  the  court  permitted  one  of  the  coi:nsel 
to  testify  from  iiis  notes  taken  at  the  trial,  ile  stated  thus: — "I  was  of 
counsel  for  the  defendants  on  the  last  trial ;  I  took  full  notes  of  tlie  trial;  I 
took  down  the  testimony  of  the  witnesses  in  question.  1  believe  the  greater 
part  is  in  the  words  of  the  witnesses.  I  believe  I  have  the  substance  and 
nearly  the  words  of  the  witnesses.  The  whole  of  it  may  not  bo  in  the  very 
words.  I  don't  recollect  the  testimony  independent  of  the  notes.  I  do  not 
recollect  any  (juestion  put  on  the  cross-oxamiuation,  nor  whether  tJiere  was 
a  crcss-eAamination.  I  believe  I  stated  what  was  believed  by  the  witne.ss 
in  reply.  I  may  have  omitted  what  I  supposed  to  be  immaterial  to  the  issue 
trying."  Held,  that  tlie  evidence  was  admissible.  In  a  later  case,  the  evi- 
dence received  went  to  the  testimony  given  on  the  stand  four  or  fiv3  years 
before,  and  tiie  court  observe — "  not  only  the  very  words  cannot  be  remem- 
bered, but  it  may  be  expected  that  even  the  tenor  and  eiVect  will  be  mis- 
taken. The  evidence  not  coming  within  the  rule  technically,  we  think  it 
ought  to  liave  been  rejected."     7  Pick.  81. 

In  a  case  in  New  York,  it  was  held,  that  the  witness  must  be  able  to  tes- 
tify from  his  own  recollection  ;  the  notes  of  coiinsel  should  not  be  relied  on. 
(i  Cowen,  i()2.  And  aithougli  he  be  permitted  to  reiVesii  his  memory,  yet 
when  refreshed,  he  must  swear  from  his  own  memory,  and  not  from  iiis 
notes,  id. 

40 


314  Hearsay  Evidence.  [CIi.   18- 

on  oath,  but  the  party,  to  be  affected  by  it,  had  the  power  of 
cross-examining  the  witness,  and  that  under  the  same  circum- 
stances as  upon  the  present  trial.  Still  the  jury  have  not  the 
means  of  judging  of  the  demeanor  of  the  witness,  which  is 
very  important  for  the  discovery  of  truth.  That  particular 
safeguard,  however,  has  been  relinquished  by  the  legislature, 
and  by  the  Courts  on  several  occasions,  where  the  requiring 
of  it  would  be  likely  to  occasion  a  failure  of  justice.  (1)  {a) 

The  exception,  in  question,  applies  to  depositions  taken  in 
Chancery  or  before  magistrates,  (2)  and  it  receives  much  illus- 
tration from  the  decisions  respecting  that  species  of  documents. 
It  will,  therefore,  be  further  considered  in  that  part  of  the 
work,  which  treats  of  written  evidence. 

The  last  exception  which  it  will  be  necessary  to  notice, 
relates  to  the  admissions  of  parties  in  civil  suits  and  the  con- 
fessions of  prisoners.  These  will  be  most  conveniently  treat- 
ed of  in  a  separate  chapter. 

(1)  See  i«/ra,  the  statutes  relating  to  liable  to  objection  than  oral  testimony, 
the  examination  of  witnesses  under  com-  as  a  more  trustworthy  account  is  obtaia- 
missions  before  Justices,  or  otherwise,  ed  of  what  was  actually  stated.  But, 
Also  the  decisions  respecting  the  reading  on  the  other  hand,  the  previous  examina- 
of  depositions  taken  before  Justices  or  tion  is  not  equally  solemn  with  that  for 
the  coroner.  which  it  is  substituted,  nor    is   there   the 

(2)  In  one  respect  depositions  are  less  same  power  of  cross-examination. 


(a)  The  evidence  of  the  former  testimony  is  admitted  only  from  necessity, 
and  is  justly  liable  to  many  exceptions;  and  seems  even  still  to  be  ques- 
tioned by  high  authority  if  it  be  admissible  at  all  in  a  criminal  case.  2 
Hawk.  606.  s.  12,  Peake's  ev.  60,  though  the  better  opinion  is  that  it  is  ad- 
missible. 12  Wend.  44,  5.  The  witness  must  be  dead  and  his  death  affirm- 
atively shown,  id.  See  also  the  case  of  Chess  v.  Chess,  supra ;  14  Mass. 
234  ;  4  S.  (St  R,  203,  In  Wilbur  v.  Selden,  6  Cowen,  162,  the  witness  was 
not  dead,  but  absent,  in  another  state  ;  and  it  was  held  that  what  he  swore 
to  on  a  former  trial  was  not  admissible.  In  Le  Baron  v.  Crombie,  14  Mass. 
36,  the  court  refused  to  hear  what  had  been  sworn  to  by  a  witness,  though 
naturally  alive,  was  civilly  dead,  having  been  convicted  of  felony. 

If  the  testimony  of  what  a  witness  swore  at  a  former  trial,  be  unaccom- 
panied with  the  postea  or  record  of  the  former  suit,  and  the  objection  be 
made  at  the  tiine,  the  objection  is  good.  8  J.  R.  451.  But  if  no  objection 
is  taken  at  the  trial,  the  court  will  presume  that  tlie  pendency  of  the  former 
trial  was  admitted.  11  id.  131. 


Sect.   l.J  Of  Admissions.  315 

*CHAPTER  XVIII.  [  *356  ] 

ADMISSIONS   AND  CONFESSIONS. 

The  exceptions,  which  have  been  admitted  to  the  rule  ex- 
ckiding  hearsay  evidence,  in  the  instances  of  admissions  and 
confessions,  depend  chiefly  on  the  principle  of  a  reasonable 
presumption  in  favour  of  the  truth  of  a  statement,  when  it  is 
against  the  interest  of  the  person  who  makes  it.  And  this 
species  of  evidence  is  of  a  nature,  which  renders  it  unnecessa- 
ry to  require  that  the  author  of  the  statement  should  be  called 
as  a  witness,  even  where  he  is  capable  of  being  called,  for 
the  purpose  of  proving  it.  In  many  cases  to  which  the 
exception  in  regard  to  admissions  is  applicable,  the  evidence 
is  considered  as  of  a  conventional  nature, — so  that  if  it  be  not 
agreeable  to  truth,  it  is  at  least  consistent  with  that  state  of 
facts,  the  truth  of  which  the  party  making  the  admission  has 
induced  other  persons  to  assume,  as  the  basis  of  their  transac- 
tions. There  is  an  arguinentum  ad  hominem,  which  has 
probably  contributed  to  the  reception  of  this  species  of  evi- 
dence, and  which  may  be  thought  to  remove  any  objections 
made  by  a  person  who  contends  that  his  own  statements  have 
been  founded  in  mistake  or  error. 

Nevertheless  it  is  obvious,  that  the  evidence,  which  is  the 
subject  of  these  exceptions,  is  liable  to  many  of  the  objections 
attaching  to  hearsay  evidence  in  general.  Some  objections,  al- 
so, are  of  a  peculiar  nature,  especially  in  the  instance  of  con- 
fessions. And  in  the  various  instances  in  which  persons  are 
liable  to  be  affected  by  the  admissions  of  others,  on  the  alleg- 
ed ground  of  being  identified  with  them,  the  principles,  upon 
which  the  exceptions  under  consideration  are  founded,  lose  a 
considerable  part  of  their  eflect.  Hence,  these  exceptions 
are  subjected  to  several  restrictions  and  qualifications,  *\vhich  r  #357  l 
it  is  proposed  to  treat  of,  first,  as  they  regard  the  law  of  ad- 
missions, and,  secondly,  as  they  regard  that  of  confessions. 

Section  1, 

Of  Admissions. 

On  the  subject  of  admissions  it  may  be  laid  down  as  a  first  Naturp  of 
principle,  that  the  whole  of  the  statement,  which  contains  wiloie'adl 
the  admission,  is  to  be  received  together.  (!)(«)  This  isneces-  "'ission. 

(1)  See    cases    collected    in    note    to     Hath  u.  Batlersea,  5  Mod.  9.  3  Salk.  153. 
Roe  V.  Ferrars,  2  B.  &  I*.  548.     Earl  of    Countess  of  Uartiiioulh    v.   Roberts,  l(i 

(a)   The  wliole  of  the  slatement,  vjhich  contain!^  the  admission,  is  to  be  received 
together.    The  testimony  cannot  be  garbled ;  1  Pet.  C.  K.  IG ;  one  part  can- 


316  Hearsay  Evidence.  [Ch.  18. 

sary  in  order  to  enable  the  Conrt  to  jncIgG  of  the  true  meaning 
and  extent  of  the  admission,  which  will  often  have  a  ditferent 
import,  when  taken  together,  from  that  which  a  partial  ac- 
count is  calculated  to  convey.  (2) 

For  example,  if  a  part  of  an  answer  in  Chancery  is  read 
in  evidence,  the  other  party  is  entitled  to  have  the  whole 
read,  (3)  and  if,  on  exceptions  taken,  a  second  answer  is  put 
in,  the  defendant  may  insivSt  upon  having  that  also  read,  to  ex- 
plain what  he  swore  in  his  first  answer.  (4)'  If  a  person,  in 
making  an  admission  against  his  own  interest,  refers  to  a  writ- 
[  '^358  ]  ten  paper,  ^without  which  the  admission  is  not  complete,  the 
contents  of  the  paper  ought  to  be  shewn,  before  the  statement 
can  be  used  as  evidence  against  the  party.  (1)  And  if  part  of 

East,  334.     Barne  r.    Whitmore,    B.ic.  is  said  that  this  rule  does  not  hold,  when 

Ab.  Ev.    622.     B.    N.    P.    237.     Saik.  an  answer  is  put  in    for  the    purpose    of 

286.     The  whole  of  a  recital  in  a    deed  shewing  the  incompetency  of  a  witness, 

must  be  taken,    2    Venlr.    171.   1  Com.  who  has,  in  his  answer,    admitted    him- 

Dig.  Ev.  b.  5.     As  to  the  point  whether  self  interested  in  the  event  of  the  cause, 

upon  indictments  for  perjury,  it  is  neces-  Sprain  v.  Drax,  trial  at  bar,  B.  N.  P.  32. 

sary    for    the    prosecutor   to   prove   the  It  is  conceived   that   the    question   must 

whole  of  the    defendant's   testimony,    2  be,  in  such  a   case,   whether  the  rest    of 

Russ.  onCr.  547.     Rex  v.  Jones,  Peake,  the  answer  might  be    relevant  to  explain 

37.  Rex  v.  Dowlan,  Peake,  170.  Carr's  the  admission  contained  in  it. 
case,  1  Sid.  418.  (4)  Rex  v.  Carr,  1  Sid.  418.  B.  N.  P. 

(2)  By    Lord    Tenterden,     in    the  237.     Gilb.  Ev.  50. 

Queen's  case,    2  Br.  &  Bing.  287.     In  (1)  See  Jacob  v.    Lindsay,    1   East, 

Thompson  r.  Austin,  2    D.  &  R.    361.  462.     Smith  r.  Young,    1  Campb.  439. 

Lord    Tenterden,    says,    "it    is    at   all  Lord  Barrymore  r.  Taylor,  1  E«p.   325. 

times  a  dangerous  thing  to  admit   a  por-  Collet  v.  Lord  Keith,  4  Esp.  212.     Ran- 

tion  only  of  a  conversation  in   evidence,  die  v.  Blackburn  5  Taunt.  245.   Board- 

because  one    part    taken    by   itself  may  man  v.    Jackson,   2  Ball  &    Bea.    386. 

bear  a  very    diHerent   construction,    and  Falconer   v.    Hanson,    1    Campb.    171, 

have  a  very  dilierent   tendency  to   what  where  a  log-book  was  referred   to  in   a 

would  be   produced  if  the  whole   were  deposition.     Dagleish  u.  Dodd,   5  C.  & 

heard  ;    for  one   part   of  a   coversation  P.  238,  where  a  letter,   written  by    the 

will  frequently  serve  to  qualify  and  to  ex-  defendant,  was  put  in,  and  it  was  held, 

plain  the  other."  that  the  defendant  had   a  right  to   have 

(3)  By  Holt,  C.  J.,  in  Lynch  v.  read  what  was  written  on  the  back  by 
Clarke,  3  Salk.  153.  Earl  of  Bath  v.  the  plaintiff.  But  where  a  plaintiff  put 
Battersea,  5  Mod.  9.     Gilb.  Ev.  44.     It  in  evidence  the  copy  of  a  writ,   it  was 

not  be  taken  and  another  rejected.  3  J.  R.  422 ;  1  McCord,  449.  But  a 
jury  may  on  siifBcieni  ground  believe  part,  and  disbelieve  another  part;  yet 
such  part  inust  be  distinct  and  relate  to  different  matters  of  fact.  3  Hals. 
279.  See  the  case  of  Ives  v.  Bartholomew,  9  Conn.  309,  v/Iiere  Daggett,  J,, 
says: — "There  is  not,  nor  never  was,  any  rule,  which  required  a  jury  to  be- 
lieve what  a  party  has  said,  in  his  own  favor.  On  a  trial  for  the  tiieft  of  a 
watch,  a  witness  swears  that  the  prisoner  acknowledged  to  him,  that  he  took 
the  watch  in  the  night  from  the  owner's  house ;  but  he  adds,  that  the  owner 
gave  him  license  to  enter  the  house  and  take  the  Avatch  at  any  time.  The 
jury  might  readily  believe  the  first  part,  and  as  readily  disbelieve  the  other 
part." 

When  a  witness  attempts  to  relate  a  conversation,  he  ought  to  relate  the 
whole ;  not  only  Avhat  the  party  has  said  in  chief,  but  it  extends  equally  to 
answers  which  he  may  have  made  to  (questions  ;  for  such  answers  may  ex- 
plain or  destroy  the  substance  of  the  conversation.  Barnum  v.  Barnum,  9 
Conn.  242. 


Sect.  1.]  Of  Admissions.  317 

a  conversation  is  used  as  evidence  by  way  of  admission,  the 
party,  against  whom  it  is  used,  is  entitled  to  have  the  whole 
conversation  repeated.  (2)  Where  commissioners  in  bankrupt- 
cy send  for  a  party,  and  compel  him  to  produce  documents 
and  answer  questions,  secondary  evidence  cannot  be  given  of 
the  documents  without  proof  of  the  examination  which  ac- 
companied their  production.  (3) 

It  is  proposed  to  consider  whether  any  limits  liave  been  im- 
posed on  the  reception  of  hearsay  evidence  of  a  party  in  his 
own  favor,  upon  the  ground  of  it's  accompanying  an  admission. 

In  the  Gtueen's  case,  the  Judges  appear  to  have  considered, 
that  there  was  no  other  limit  to  the  admissibility  of  the  whole 
of  the  statements  containing  an  admission,  than  that  of  rele- 
vancy to  the  suit.  Lord  Tenterden,  in  delivering  the  opinion 
of  the  Judges,  says,  "  if  a  counsel  chooses  to  ask  a  witness 
as  to  any  tiling  which  may  have  been  said  by  an  adverse  par- 
ty, the  counsel  for  that  party  has  a  right  to  lay  before  the 
Court  *the  whole  which  was  said  by  his  client  in  the  same  [  *359  ] 
conversation,  not  only  so  much  as  may  explain  or  qualify  the 
matter  introduced  upon  the  previous  examination,  but  even 
matter  not  properly  connected  with  the  part  introduced  upon 
the  previous  examination,  provided  only  that  it  relate  to  the 
subject  matter  of  the  suit :  because  it  Avould  not  be  just  to 
take  part  of  a  conversation  as  evidence  against  a  party,  with- 
out giving  to  the  party,  at  the  same  time,  the  benefit  of  the 
entire  residue  of  what  he  said  on  ihe  same  occasion."  (1) 

But  it  has  been  held,  that  although  a  defendant  is  entitled 
to  have  the  whole  of  a  particular  entry  in  a  l)Ook  read,  where 
a  part  of  it  is  used  against  him,    yet  he    cannot  insist  upon 

held  that  the  defendant   had  no  right   to  tion  with  extracts  from  his  books, 
have   the  sheritf's    return   read,    which  (3)   Holland  v.  Reeves,  7  C.  &  P.  38. 
formed  no  part  of  the  document    in  evi-  Tiie  paper,  which  was  the  inacliine  copy 
dence.     Adey    v.    Bridges,    2    St.   181).  of  a  letter,  was  not   annexed  to  the    ex- 
Johnson  V.  Gilson,   4  Esp.  21,  where   a  aniination. 

letter  produced   refers  to    other    letters;  (1)  Justice  does   not  seem  to  require, 

secus,   if  the   letter   merely    states    that  that  a  declaration  of  a  party   in  his  own 

others   are    enclosed    under    it's    cover,  favor  should    be   received    in    evidence, 

Wheeler  r.  Atkins,  5  Esp.  246,   interro-  merely  because  it  occurred  in   the  course 

gatory  referring  to  a  letter.     So    that,  if  of  conversation,  in    some  part  of  which 

the  interrogating  party  refuse  to  produce  he  made  an   admission    against    himself, 

the  letter,  he  must  abandon  the  whole  of  But  it  is,  probably,  more  convenient    in 

the  interrogatories.  practice  to  allow    of  the  whole    conver- 

(2)  Smith  V.  Blandy,  R.    &   I\I.  357.  salion  being  given  in  evidence.     It    was 

Smith  V.  Young,  1  Campb.  439.     Green  held,  upon  the  same  occasion,  that  when 

V.  IJunn,    3    Campb.    215.     Anon.    12  a  conversation  between  a  witness  and  a 

Vin.  Ab.    Ev.    A.    b.    23.     Remmie   v.  third  person  is  given  in  evidence  with  a 

Hall  V.  Mann.  Ind.  2d  edit.    37G.     Cray  view  to  aifect  the  credit  of  the  witness, 

V.  Halls,   R.  &,  M.  238.     Thompson    r,  it  would  be  irrelevant    and    incompetent 

Austen,  2   I).    &  R.    361.     Elelcher   v.  to  inrjiiire  into  the    parts  of  the    conver- 

I'Voggat,  2  C.  &,  P.  56i).   R.  v.  Jones,  2  sation  not  necessary    for    explaining    the 

Cist    P.    630.       2  V'entr.    171.     Com.  meaning   of  the   words  and  declaralions 

Dig.  Ev.  B.  5.     Yates  t).  Carnsew,  3  C.  adduced  to  discredit  the  witness.     2    Br. 

&  P.  99,  where  u.  bankrupt  was  entitled  &  Bing.   298. 
to  have  bia  examination  read  in  conjunc- 


31S 


Hearsay  Evidence. 


[Ch.   18. 


reading  distinct  entries  in  different  parts  of  the  books.  (2) 
And  letters  written  by  a  party  arc  evidence  against  hiin  with- 
ont  producing  those  to  which  such  letters  are  answers.  (3) 
The  examination  of  a  party,  signed  by  him  before  commis- 
sioners of  bankrupt,  is  evidence  against  him,  though  part  on- 
ly of  his  deposition  was  noted  down.  (4)  And  testimony  giv- 
en in  Court,  admitting  a  particular  fact,  may  be  used  as  an 
admission,  though  the  person  examined  was  prevented  from 
entering  into  an  explanation  of  the  circumstances  under  which 
the  fact  took  place,  because  it  was  irrelevant  to  the  matter  in 
issue  npon  the  former  occasion.  (5) 
[  *3(30  ]  *When  an  answer  or  depositions  in  Chancery  are  offered  in 
evidence,  as  to  the  admissions  of  a  party  upon  oath,  or  for  the 
])urpose  of  contradicting  a  witness,  it  appears  not  to  be  neces- 
sary to  produce  any  of  the  other  proceedings,  as  the  bill,  an- 
swer, or  decree,  for  the  purpose  of  elucidating  the  admission. 
(1)  But,  where  a  bill  of  discovery  had  been  filed,  upon  which 
there  had  been  a  decree  and  order  for  bringing  into  Court  cer- 
tain letters,  it  was  held,  that  these  letters  could  not  be  read 
in  an  action  at  law  between  the  parties  to  the  Chancery  suit, 
without  first  putting  in  the  bill  and  answer ;  (2)  for,  it  was 
said,  the  answer  might  contain  such  a  contradiction  or  expla- 
nation of  parts  of  the  letters,  as  might  wholly  neutralize  their 
effect. 

In  the  case  of  Long  v.  Champion,  (3)  on  a  trial  of  an  ac- 


(2)  Can  V.  Howard,  3  St.  Ca.  6, 
where  it  was  said  to  be  the  constant 
practice  in  quo  warrantos.  See 
\Vhareham  v.  Routledge,  5  Esp.  235. 
Reminie  v  Hall,  Mann.  Index,  376.  If 
one  party  gives  notice  to  another  to  pro- 
duce his  books,  and  inspects  thetn,  it 
seetns  to  have  been  considered  that 
this  makes  them  evidence  for  the  other 
side.  By  Lord  Ellenborough,  in  Whare- 
ham  15.  Routledge,  5  Esp.  235. — 
Lord  Kenyon  appears  to  have  held  dif- 
ferently.    Sayer  v.  Kitchen,  I  Esp.  209. 

(3)  Lord  Barrymore  v.  Taylor,  1  Esp. 
326. 

(4)  Milward  v.  Forbes,  4  Esp.  172. 

(5)  Collet  V.  Lord  Keith,  4  Esp. 
212.  It  would  seem,  that  the  part  of  a 
statement  which  is  let  in  by  the  party  pro- 
ducing it  unfavorable  to  his  own  case,  is 
not  to  be  considered  as  an  admission  for 
him,  so  far  as  to  supersede  proof  by  supe- 
rior evidence.  Thus,  if  the  plaintiff",  in 
an  action  against  the  sheriff',  produced  a 
warrant  which  recites  a  writ,  it  would 
seem  that  the  sheriff"  must  nevertlieless 
prove  the  writ,  if  it  be  necessary  for  his 
own  justification.  See  Grey  v.  Smith,  1 
Campb.  3S7.  Stanley  v.  Fielden,  5  B. 
&  A.  425. 


(1)  Lady  Dartmouth  v.  Roberts,  16 
East,  334.  Sailer  v.  Turner,  2  Campb. 
87.  3  Campb.  401.  Ewer  r.  Ambrose, 
4  B.  &  C.  25.  But  in  general,  an  an- 
swer to  a  question  cannot  be  read  with- 
out shewing  the  question  to  which  it  re- 
lates. Kex  V.  Picton,  Howell's  St.  Tr. 
vol.  30,  p.  466. 

(2)  Hewitt  r.  Piggot,  5  C.  &  P.  77. 
The  letters  in  question  were  not  written 
by  the  plaintiff',  but  were  used  against 
hiiri,  as  having  been  in  his  possession  for 
a  long  time,  by  which  a  presumption 
was  aiforded  of  his  having  acted  upon 
them.  It  was  held,  that  the  order  was 
admissible  of  itself,  being  an  act  of 
Court,  not  aff"ecting  the  rights  of  ei- 
ther of  the  parties.  See  Temperlay  v. 
Scott,  5  C.  &  P.  341.  as  to  reading 
cross-interrogatories  which  are  part  of  a 
case.  A  party  giving  a  correspondence 
in  evidence  was  allowed  to  put  in  his 
letter  in  reply  to  the  last  lelter  on  the 
other  side.     Roe  v.  Day,  7  C.  &  P.  705, 

(3)  2  B.  &  Ad.  284.  A  case  was 
cited  by  counsel  as  having  been  decided 
at  nisi  priun  by  Lord  Tenterden,  in 
which  the  defendant,  (having  given  the 
plaintiff"  notice  to  produce  his  books)  of- 
fered in  evidence  a  copy  of  one  of  them. 


Sect.   I.J  Of  Admissions.  •  319 

tion  at  law,  a  copy  of  a  letter  written  by  the  plaintifl'^s  agent, 
and  referred  to  by  the  plaintilf  in  his  answer  to  a  bill,  in  Chan- 
cery, *and  the  original  of  which  letter,  instead  of  being  filed  [  *361  ] 
in  the  Master's  Office,  had,  by  consent  of  parties,  been  depos- 
ited for  inspection  with  the  plaintiff's  clerk  in  Court  in  the 
Chancery  suit,  was  held  to  be  admissible  evidence  on  the 
part  of  the  defendant  at  law,  without  reading  the  answer  in 
Chancery.  Lord  Tenterden,  in  his  judgment  in  this  case,  ob- 
served, "whether  it  is  necessary  in  every  instance  to  read  an 
answer  in  Chancery,  for  the  purpose  of  making  any  documents 
evidence  which  may  be  annexed  to  it,  we  do  not  now  decide. 
I  should  at  present  think  it  a  very  strong  proposition  to  say, 
that  the  answer  must  at  all  events  be  read,  though  having  no 
connection  with  the  case  in  which  the  documents  are  produc- 
ed. But  here,  at  least,  we  think  the  copy  in  question  was  ad- 
missible without  the  answer."  Lord  Tenterden  also  observ- 
ed, that  the  letter  was  not  regularly  before  the  Court  of  Chan- 
cery in  the  suit  there,  as  it  would  have  been,  if  it  had  been 
produced  in  the  Court  of  Chancery  and  had  been  filed  in  the 
Master's  Office. 

Where  the  whole  of  admissions  are  received,  it  often  hap-  EiTect  of 
pens  that   they  contain  statements  favourable  to  the  persons  whoie'af- 
whose  admissions  they  are,  and  against  whom  they  are  used,  '"'ssion. 
and  in  many  instances  they  are  found  to  contain  hearsay  evi- 
dence of  facts.     The  principal  ground  for  receiving  the  whole 
admission  appears  to  be,  that  by  comparing  the  several  parts 
with  each  other,  the  true  meaning  and  extent  of  the  admis- 
sion may  be  more  clearly  understood.     On  this  ground,  there 
does  not  appear  to  be   sufficient  reason  why   the  parts  of  the 
admission,  which  may  be  favourable   to  the  person   against 
whom  it  is  used,  should  be  applied  to    any  other  purpose,  in 
the  minds  of  the  jury,  than  that  of  explaining  the  parts  which 
appear  unfavourable. 

But  although  it  would  seem,  that  the  principal  ground  up-  Favorable 
on  which  admissions  are  received  in  evidence,  is,  because  it  ''^'^'^ " 


mission. 


may  be  presumed,  that  a  person  would  not  speak  against  his 
own  interest ;  and  that  the  reason  for  receiving  the  whole  ad- 
mission, is  only  to  ascertain,  whether  the  person  has  in  fact 
spoken  against  his  own  interest,  and,  if  so,  to  what  extent, 
and  with  what  qualifications :  *=yet,  it  may  be  collected  from  [  *3G2  j 
authorities,   that  the  effect  of  receiving  the   whole  admission 

and  it  turned  oat  on   cross-examination,  bookwereappended  to  the  answer,  or  the 

that  the  witness  had  obtained  an  inspec-  answer   expanded  to    the  extent    of  the 

tion  of  the  book   in  the  Master's   ollico,  booli  ;  and  that  advantage  could    not  be 

where  it  was  deposited   by   an    order  of  taUen  of  an  inspection,  obtained  through 

the  Court  of  (Chancery,  as    being   refer-  a  conventional  and  economical  procced- 

red  to  by  a  plaintifl'  in  his  answer   to    a  ing  between  the  parties  in  the    Chancery 

bill,  and  that  on    that  occasion  the  copy  suit,  lo  give  in    evidence  a    part   of  the 

was  made  :  and  Lord  Tenterden  ruled,  answer,  without  reading  the  whole, 
that  this  was  the  same,    as  if  the  wiiolc 


320  Hearsay  Evidence.  [Ch.   IS. 

amounts  to  somctliing  more.  It  would  seem  to  have  been 
sometimes  considered,  that  it  operated  as  a  waiver  of  any  ob- 
jection to  the  testimony  ot  the  party  making  the  admission,  as 
to  all  matters  contained  in  it.  (1)  IJy  this  reasoning,  the  use 
of  the  admission,  as  to  those  parts  in  which  the  probability 
of  it's  trutli  is  supported  by  the  presumption  before  mentioned, 
is  deemed  a  legitimate  ground  for  using  it  to  prove  matters, 
where  the  presumption  in  question  fails,  and  a  contrary  pre- 
sumjition  is  found  to  prevail.  It  is,  however,  understood, 
that  the  several  parts  of  an  admission  are  not  necessarily  en- 
titled to  equal  credit  ;  the  jury  may  believe  one,  and  reject  the 
other.  (2) 

Thus  in  Smith  v.  Blandy,  (3)  in  an  action  for  goods  sold 
and  delivered,  one  of  the  plaintiff's  witnesses  stated,  upon 
cross-examination,  he  had  heard  the  plaintiff  say,  that  the 
goods  were  sold  under  a  written  contract,  which  the  plaintiff 
at  the  time  shewed  the  witness.  A  broker's  note  was  then 
produced  by  the  plaintiff's  counsel,  which  the  witness  said 
was  the  paper  spoken  of.  It  was  objected,  that  the  broker's 
note  ought  not  to  be  received  as  evidence  of  the  contract,  un- 
less the  broker  was  called  to  prove  it.  But  the  objection  was 
overruled,  and  it  was  held  by  Best,  C.  J.,  that  the  whole  of 
what  a  party  says  at  the  time,  must  be  given  in  evidence, 
though  what  he  says  in  his  favour  must  not  be  taken  as  true, 
but  must  be  left,  under  all  the  circumstances,  for  the  jury  to 
consider  whether  they  believe  it  or  not.      And  in  Randle  v. 

[  *363  ]  Blackburn^  (4)  it  was  *held  that,  where  a  person  admitted 
a  claim,  but  at  the  same  time  set  up  a  counter  claim,  the 
statement  of  the  counter  claim  was  admissible  evidence  to 
prove  not  only  its  existence,  but  the  truth  and  correctness 
of  it. 

Hearsay  With  respcct  to  the  case  of  an  admission  containing  hear- 

coniinued 
ill  admis- 
sion. (1)  Answer    of   the    Jutlj^es    in   llie         (4)  TJandle  v.  Elackl)urn,    5   Taunt. 

Queen's  case,  2  Dr.  <S-  B.  2S)S.     Ifandle  345.     Tiie  plaintiff wa«  only  allowed  to 

V.  Blackiiurn,  5  Taunt.    245.    Sniitli    r.  recover  the  halance  between    the    claim 

Blandy,  R.  Sf  M.  257.     See  per  Chain-  admitted,  and  the  ainount  of  the  counter 

bre,  .1.,  in  Roe  r.  Ferrars,  2  I'.  S{  P.  542,  claim.     And  see  Thompson  v  Austen,  2 

infra,   and  see  infra  tit.  Confessions.  D.  &  R.  361.      Fletclier  v.  Frog^at,    2 

(2)  R.  r.  Clewes,  4  C.  ^  P.  225.  C.  <k.  P.   569,  wliere  undue   wei-^iit   ap- 

(3)  Ry.  cV  Mo.  257.  Cray  v.  Halls,  pears  to  have  been  given  to  the  state- 
cited  r6.,  wliere  Lord  Tenterden  left  the  tnent  in  the  defendant's  Hivour.  12  Vin. 
whole  of  a  conversation  to  a  jury,  to  Al)r.  tit  Ev.  A.  b.  23,  where  a  person 
consider  whether  the  facts  asserted  by  a  said,  "that  he  did  owe  a  debt,  but 
party  in  his  own  favour,  were  not  true  as  that  he  paid  it."  (ireen  u.  Dunn,  Campb. 
well  as  those  against  him.  And  see  215.  ymith  v.  Young,  1  Campb.  439. 
Remmie  7).  Hall,  IManning's  Index,  2d  Barrymore«.  Taylor,  1  Esp.  325.  Com. 
ed.  376.  In  Eq.  Ca.  Ab.  10,  it  is  said  Dig  Ev.  B.  5.  12  Vin.  Ab.  Ev.  A.  23. 
that,  "  wliere  a  man  is  charged  only  by  2  Venlr.  171.  Cooper  v.  Smith,  15 
an  oath,  or  a  book,  the  same  should  be  East.  103.  The  point  more  frequently 
his  discharge."  See  also  Thompson  v.  occurred  previously  to  the  alteration  of 
Lambe,  7  Vess.  588.  Ridgway  v.  Dar-  the  law  respecting  debts  affected  by  the 
win,  7  Vess.  404.  Statute  of  Limitations. 


Sect.   1.]  Of  Admissions.  221 

say  evidence,  some  remarks  were  made  on  the  subject  hi  the 
case  of  Roe  on  the  demise  of  Pellat  and  others  v.  Ferrars,  (!) 
where  the  defendant  gave  in  evidence  an  answer  in  Chancery 
by  the  lessors  of  the  plaintiC  Mr.  Justice  Chambre,  observ- 
ing upon  the  degree  of  positive  proof  which  the  lessors  of  the 
plaintift'  had  drawn  from  the  answer  in  their  own  favour,  ex- 
pressed himself  thus  : — "  It  is  true  that  the  answer  was  intro- 
duced into  the  cause  by  the  defendant,  on  whose  behalf  some 
parts  of  it  were  read.  But  in  those  parts  on  which  the  lessors 
relied,  they  speak  only  to  '  what  they  have  heard  as  truth.'  I 
think  that  was  not  admissible  evidence,  for  it  appears  to  me, 
that  where  one  party  reads  a  part  of  the  answer  of  the  other 
party  in  evidence,  he  makes  the  whole  admissible  only  so  far 
as  to  waive  any  objection  to  the  competency  of  the  testimony 
of  the  party  making  the  answer,  and  that  he  does  not  thereby 
admit,  as  evidence,  all  the  facts,  which  may  happen  to  have 
been  stated  by  way  of  hearsay  only  in  the  course  of  the  an- 
swer to  a  bill  filed  for  discovery.  "This point,"  he  added,  - 
"  does  not  indeed  appear  to  have  been  contested  at  the  trial  : 
had  it  been  contested,  I  should  have  thought  the  Conrt  bcfund 
to  send  the  case  down  for  a  new  trial." 

There  appears  to  be  some  discrepancy  in  the  authorities  at  Admis- 
*Nisi  Prius,  whether  an  admission  of  the  contents  of  a  writ-  '''°."."'    ,  ^ 

■  11  •  1  wniiiig^s  (a) 

ten  mstrument  will  supersede  the  necessity  ot  giving  notice  r  *354  1 
to  produce  it.  The  point  involves  the  question,  how  far  the 
doctrine  of  admissions  supersedes  the  rule  hereafter  to  be 
considered  concerning  the  rejection  of  secondary  evidence, — 
how  far  the  principles,  upon  which  that  rule  is  founded,  are 
entitled  to  less  consideration,  than  the  reasons  for  allowing  a 
party's  admissions  to  be  received  in  evidence.  It  may  be  ob- 
served, that  the  evidence,  for  which  admissions  are  substitu- 
ted in  such  cases,  is  of  a  superior  character  to  that  v^'hich  is 
dispensed  with  in  the  case  of  verbal  testimony,  and  also  that 
it  is  exposed  to  less  danger  of  being  entirely  lost.  In  Blox- 
(unY.  Elsee  (1)  Lord  Tenterden  held,  that  a  witness  could 
not  be  asked,  Avhat  a  party  to  a  suit  has  said  as  to  the  con- 
tents of  deeds  executed  by  himself,  without  giving  the  party 
notice  to  produce  the  deeds,  or  accounting  for  their  non-pro- 
duction.    On  the  other  hand,  in  Earle  v.  Picken^  (2)  where 

(1)  2  Bos.  4-  Pull.  548.     See  also  the  Stwell  v.  Stubbs,  1  C.  &  P.  73,    wliero 

remark  of  Lord  .Mansfield  in  Beniion  v.  the   pluiiitilPs    admission  a^  lo    the  coii- 

Woodbridge,  2  Doug.   788.  tents  of  a  note    was    received.     Doe   v. 

(1)  rJioxatn  V.  Eisee,  1  C.  &  P.  5.58.  Miles,  1  Si.  Ca.  IS  I,  notice  by  partners 
R.  8f  M.  187.  that   partnership  has  been  dissolved,  evi- 

(2)  Earle  v.  Picken,  5  C.  <fc    p.   542.  dence  of  a  dissolution,    though   parlner- 


(a)  It  is  not  necessary  to  call  the  agent  who  executed  a  deed  by  virtno  of 
a  power  of  Jittoriiey,  to  prove  the  power ;  the  declarations  of  lije  constitu- 
ent, made  before  the  interest  of  the  defendant  accrued, — the  latter  claiming- 
under  him  i.s  sulHcicrit.     14  VVciid.  618. 


322  Hearsay  Evidence.  [Chap.   18. 

a  witness  was  asked  whether  he  had  not  heard  the  defendant 
say,  that  an  individual  named,  had  agreed  to  give  a  certain 
sum  of  money  for  an  estate  in  question,  Mr.  Justice  J.  Parke 
is  reported  to  have  ruled,  upon  objection  taken  to  the  question, 
that  what  a  party  to  a  suit  says,  is  evidence  against  himself, 
whether  it  relates  to  the  contents  of  a  written  instrument  or 
to  any  thing  else.  And  in  a  more  recent  case,  where  the  de- 
fendant put  in  evidence  the  answer  of  a  plaintiff  to  a  bill  in 
[  *365  ]  Equity,  in  which  answer  the  plaintiff  ^stated  that  he  had 
conveyed  certain  property  by  deeds  of  lease  and  release,  it 
was  held,  that  the  answer  was  evidence  of  the  conveyance, 
without  notice  being  required  to  produce  the  deeds.  (1)  It 
will  be  seen  that  when  it  is  proposed  to  prove  an  actual  con- 
veyance, an  admission  of  it's  execution,  even  made  upon  oath 
in  an  answer  in  Chancery,  will  not  dispense  with  calling  the 
subscribing  witness  ;  this,  however,  depends  on  the  principle, 
that  the  subscribing  witness  may  be  acquainted  with  facts  not 
within  the  recollection  of  the  parties  to  an  instrument.  (2)  (a) 
A  parol  admission  appears  not  to  be  receivable  for  the  pur- 
pose of  contradicting  documentary  evidence.  Thus,  where  a 
person  was  proved  to  be  seized  of  certain  lands  by  documents 
produced  in  the  cause,  his  declarations,  to  the  effect  that  he 
had  a  less  estate  than  a  fee-simple,  were  rejected.  (3) 

ship  were  by  deed.  Doe  r.  Watson,  2  tlie  necessity  of  proving  a  protest  is 
St.  Ca.  230,  where  a  landlord's  admission  cured  by  admission  of  liability.  Gibson 
of  the  assignment  of  his  revertions  was  v.  Coggon,  2  Campb.  188.  Patter- 
received.  Parol  proof  of  partnership  son  r.  Becher,  6  B.  Moore,  319.  Green- 
constituted  by  deed.  Alderson  v.  Clay,  way  v.  Ilindley,  4  Campb.  52. 
1  St.  405.  Hatveyr.  Key,  9  B.  &  C.  (I)  Ashmore  v.  Hardy,  7  C.  &  P. 
356.   In  Newman  v.  Sketch,  1  M.  k.  M.  504. 

338,  it  was  held,  that  a    declaration    of  (2)  Per  Le  Blanc,  J.,    Call    v.  Dun- 

a  bankrupt,  that  he   departed  his    house  ning,    4  East,  53.     Abbott   v.    Plumbe, 

in  order  to  avoid  a  writ,  is    evidence    of  Doug.  216.     Cunlifle  «.  Sefton,  2   East, 

an  act  of  bankruptcy    without    proof  of  1S3.     Bowles  v.  Langworlhy,  5  T.    R. 

the  writ,  or  of  a    debt,  or    of  the   e.xist-  306. 

ence    of  creditors.     On     admissions    of  (3)  Harrison    pnd    Wife    v.    Moore, 

capacity,  as  assignees  of  a    bankrupt. —  Nolt.  Spr.   Ass.    1837.     Per    Liltledale, 

Pasmore    v.  Bousfied,    I    St.  Ca.    296.  .T,  who  observed,  that  in  the  cases  where 

Robinson  r.  Henshaw,  4  M.  &  S.    475.  such  declarations  had  been  received,  the 

Digby  tj.  Steel,  3  Campb.    115,    admis-  declarant'.s  title  had  rested  merely  on  the 

sion  of  property  being  leasehold.     That  fact  of  possession. 


[a]  In  an  action  on  a  bond,  the  court  ruled,  that  the  subscribing'  witness 
must  be  produced,  unless  his  absence  is  accounted  for;  any  species  of  con- 
fession was  inadmissible.     Fox  v.  Riel,  .3  J.  R.  477. 

The  rule  has  been  relaxed  as  to  negotiable  paper.  Hall  v.  Threps,  2  J.  R. 
451  ;  2  Wend.  575 ;  Fitchorn  v.  Boyer,  5  Watts,  159.  See  13  Wend.  178; 
II  Mass.  309.  But  great  strictness  and  certainty  is  required  in  the  second- 
ary proof  16  J.  R.  202.  Here,  the  witness  called  on  the  maker  of  the  note 
which  he  had  given  to  H.,  or  bearer,  without  mentioning  date  or  sutn,  and 
the  maker  (defendant)  acknowledged,  that  he  had  given  a  note  to  H.  No 
note  was  produced,  and  shown  by  witness  to  defendant,  and  the  court  said, 
that  the  identity  of  the  note  to  which  the  defendant's  confession  related, 
was  not  proved  with  reasonable  certainty. 


Sect.   1.]  Of  Admissions.  323 

A  parol  admission  will  not  dispense  with  the  production  of  A.imission 

o!  rccorus. 

a  record  ;  as,  where  to  prove  the  discharge  of  the  plaintiff  un- 
der an  insolvent  act,  it  was  proposed  to  give  in  evidence  his 
admission  to  that  effect ;  the  evidence  was  held  to  be  insuffi- 
cient, and  it  was  thought  necessary  to  call  the  clerk  of  the 
peace,  and  to  give  in  evidence  the  order  of  the  Quarter  Ses- 
sions, by  which  the  discharge  was  effected.  (4)  So  it  has  been 
seen,  that,  in  order  to  prove  the  incompetency  of  a  witness  on 
the  ground  of  infamy,  his  own  admission  of  having  been  con- 
victed is  not  sufficient,  and  an  examined  copy  of  the  record  of 
his  conviction  must  be  produced.  (5)  (a) 

Another  rule,  defining  the  lesal  nature  of  an  admission,  is  Admis- 

'  •,,!•  •■  1       sionsdunng 

that  an  otier  by  a  party,  either  verbal  or  in  writing,  expressly  treaty. 
*stated  to   be  made  without   prejudice,  (1)  to    pay  money  by  [  *366  ] 
way  of  compromise,  and  with  a  view  of  buying  peace,  is  not    -> 
evidence  of  a   debt  by  way  of  admission.  (2)  Where  a  com- 

(4)  Scott  V.   Clare,    3    Campb.  623.  clear.     It  is   generally    considered    that 

(5)  In  this  instance  there  might  ap-  an  admission  made  without  prejudice,  is 
pear  to  be  some  reason  for  dispensing  not  receivable  on  the  ground  of  policy 
vviih  the  proof  of  conviction,  as  the  pro-  in  protecting  such  confidential  overtures, 
duction  of  the  witness  may  often  be  a  But  it  would  appear  that  an  offer  to  get 
surprise  or  the  opposite  party.  rid  of  an    action    has    sometimes    been 

(1)  Wallace  r.  Small,  1  M.  &  M.  held  inadmissible  on  the  ground  of  ir- 
449,  where  Lord  Tenterden  said,  that  relevancy,  as  not  anjounting  to  an  ac- 
an  offer  to  compromise  might  be  very  knowledgment  of  right  Thus,  in  B. 
well  made,  without  any  restriction  as  to  N.  P.  236,  it  is  said,  "  If  A.  sue  B.  for 
confidence.  And  see  VVatts  v.  Lawson,  100/.,  and  B.  offer  to  pay  him  20/.,  it 
ib.  447,  n.  Nicholson  v.  Smith,  3  St.  Ca.  shall  not  be  received  in  evidence,  for 
129,  where  the  defendant  offered  a  sum  this  neither  admits  nor  ascertains  any 
of  money  to  settle  the  action.  debt,  and  is  no    more    than    saying,    he 

(2)  Cory  t>.  Bretton,  4  C.  ^  P.  462.  would  get  rid  of  the  action."  In  Rouse 
By  Lord  Kenyon,  in  Gregory  v.  How-  v.  Redwood,  1  Esp.  155.  Lord  Ken- 
ard,  3  Esp.  113.  See  by  Lord  Kenyon,  yon  rejecied  an  admission,  as  being  made 
in  Waldridge  w.  Kennison,  1  Esp.  143,  to  a  baililf  on  the  party  being  arrested, 
and  in  Turner  v.  Railton,  2  Esp.  474.  Hill  r.  Elliot,  5  C.  &  P.  426.  On  the 
B.  N.  P.  236.  Harman  r.  Vanhatton,  distinction  between  an  offer  to  purchase 
2  Vern.  717,  Turton  u.  Benson,  1  P.  peace,  and  an  account  stated.  Wayman 
Wms.  497,     The  ground  for   the  rejec-  v.  Ilillard,  7  Bing.  101. 

tion  of  the  evidence  does  not  seem  very 

(a)  In  Jenner  v.  Joliffe,  6  J.  R.  9,  there  was  an  attempt  to  prove  the  exist- 
ence of  legal  proceedings  in  Quebec,  by  the  confession  of  the  party.  Thomp- 
son, J.,  says,  "  The  confessions  of  a  party  have  never  been  considered  com- 
petent evidence  of  the  execution  of  a  specialty,  and  much  less  ought  they 
to  be  admitted  as  proof  of  matters  of  record." 

The  admissions  of  a  party  are  competent  evidence  against  himself  only 
in  cases  where  parol  evidence  would  be  admitted  to  establish  the  same  facts, 
or  where  there  is  not  in  the  judgment  of  the  law  higher  and  better  evidence 
to  be  produced,    8  Wend.  480. 

Plaintiffs  suing  as  a  corporation  must  prove  themselves  duly  incorporated 
by  competent  authority,  on  the  plea  of  the  general  issue.  19  J.  R,  300  ;  1 
Wend.  ryr^^.  And  this  they  must  establisli  by  the  proper  evidence.  8  J.  R. 
378;  8  Wend.  480.  In  the  latter  case  cited,  it  was  contended  that  the  de- 
fendant, by  his  contracts  with  the  plaintitTs  (a  corporation)  had  admitted 
that  they  are  a  body  corporate,  duly  constituted  by  law  ;  but  the  court  over- 
ruled the  position  and  said  the  existence  of  the  corporation  was  not  to  be 
inferred  from  the  contract  with  it  by  its  corporate  name. 


324  Hearsay  Evidence.  [Ch.   18. 

miinication,  without  prejudice,  liad  taken  place  between  the 
attornies  of  the  plaintiff  and  defendant,  and  the  plaintiff's  at- 
torney three  months  afterwards  called  on  the  defendant  to 
explain,  why  an  earlier  answer  was  not  given  to  a  proposition 
made  in  the  course  of  the  prior  communication,  it  was  held, 
that  the  evidence  of  what  passed  on  the  second  occasion  was 
inadmissible.  (3) 

The  rule  under  consideration  does  not  apply,  where  admis- 
sions are  made  without  it's  being  stated,  that  they  are  without 
prejudice^  (4)  (a)  or  where  an  agreement,  though  purporting  to 
be  a  compromise,  has  been  finally  concluded,   (as,  where   it 
has  been  signed  by  the  parties  and  executed,)  (5)  or  where 
the  admissions  were  made  before  an  arbitrator.     Jn  this  last 
case,  though  the  proceedings  are  said  to  be  before  a  domestic 
forum,  yet  the  parties  were  at  the  time  adversely  contesting 
their  rights.  (6)  The  fact  of  a  person  having  made  an  offer  to 
[  *367  ]  compromise  a  suit,  is  admissible  *in  evidence,  and  may  be 
material,  although  it  is  improper  to  inquire  into  the  terms  of- 
fered. (1) 
Afimission        A  distinction  also  is  to  be  made,  on  this    subject,   between 
facts  during  3-'^ 'i-di'nission  of  some  fact  connected  with  the    merits  of  the 
treaty.        cause,  and  an  admission  of  an  indifferent  fact,  as  of  the  hand- 
writing of  a  party.     Thus  on  the  trial  of  an  action,  which  had 
been  once  withdrawn    under  a   treaty  between    the  parties, 

(3)  Collins'  Ex.  t).  Wright,  Midi.  Thompson  v.  Austen,  2  D.  8(  R.  358, 
Spr.    Cir.     1837.      Per    Lord     Abinger.  an  offer  to  refer,  where  it    was  siiid    by 

(4)  VValliice  «.  Small,  1  U.  k.  M.  446.  Mr.  .lustice  Bayley,  that  the   essence    of 

(5)  Jrognell  v.  I^vvelyn,  9  Pr.  123,  an  offer  of  Compromise  is,  that  the  par- 
128.  ty  making  that  offer  is  willing  to   submit 

(6)  Westlake  v.  Collard,  B.  N.  P.  to  a  sacrifice,  and  make  a  concession. 
236.  1  P.  Wms.  497.  Slack  v.  Bucli-  Lord  Kenyon  said,  that  he  should  re- 
«nan,  Peake,  5.  See  B.  N.  P.  236.  ceive  all  such  admissions  before  an  arbi- 
Harman  u.  Van  Hatton,  2  Vern.  717.  trator,  which  a  party  would  be  compell- 
1  P.  Wms.  497.  Waldridge  v.  Kenne-  ed  to  make  by  a  bill  of  discovery. — 
son,  1  Esp.  143.  Doer.  Evans,  3  C.  Slack  v.  Buclianan,  Peake,  5.  Gre- 
&  P,  220,  where  it  is  said  that    matters  gory  v.  Howard,  3  Esp.  113. 

come  as  adversely    before    an    arbitrator  (1)   Harding  ?'.  Jones,  IT.    G.    135, 

as  before  any  other   tribunal.     The    ad-  where  the  fact  of  a  person  having  called 

missions  may  be  proved    by    an  arbitra-  for  the    purpose    of  compromising,   was 

tor.     Gregory  r.  Howard,  3   Esp.    113.  material  on  a  question  of  disputed  hand- 

Tho    evidence  was    of  facts    admitted,  writing. 


(a)  Wallace  v.  Small.  The  principle  of  this  case  has  been  denied,  (11 
Conn.  R.  514);  and  it  is  said  to  be  opposed  to  previous  and  subsequent  de- 
cisions on  this  point.  The  court  added,  that  they  could  not  yield  to  its  au- 
thority. "  The  rule  is,  that  when  the  admission  goes  to  the  very  point  of  the 
claim  against  him  who  makes  it,  and  which,  from  the  nature  of  the  thing, 
or  from  the  circumstances  attending  the  case,  cannot  apparently  be  learned 
any  other  way,  and  is  made  during  a  negotiation,  it  can  never  be  proved." 
Per  Reeve,  J.,  in  Mitchell  v.  Preston,  5  Day,  100. 

In  Williams  v.  Thorp,  8  Cowen,  201,  Woodworth,  J.,  says,  that  conces- 
sions or  admissions  made  during  the  pendency  of  a  treaty  for  compromising 
&  suit,  are  not  admissible  in  evidence  against  the  party  making  them. 


Sect.   1.]  Of  Admissions.  325 

Lord  Kenyon  allowed  proof  of  the  defendant's  having  admit- 
ted his  acceptance  on  a  bill  of  exchange,  though  the  admission 
had  been  made  during  the  treaty  (2) ;  he  held,  that  any  ad- 
mission by  the  party,  respecting  the  subject  matter  of  the  ac- 
tion, pending  a  treaty  on  the  faith  of  which  it  was  made, 
could  not  be  received  to  his  prejudice  :  but  added,  that  such  a 
fact  as  that  of  the  party's  handwriting,  not  being  coimected 
with  the  micrits  of  the  cause,  and  capable  of  being  easily 
proved,  stood  on  difierent  grounds,  and  that  an  admission  of 
this  fact  might  be  received,  (a) 

With  respect  to  the  question,  whether  the  legal  nature  of  aJ,'„""'f„'^, 
an  admission  requires  it  to  be  voluntary,  there  appears  to  be  a 
distinction  between  civil  and  criminal  cases.  It  has  been  con- 
sidered, that  on  the  trial  of  civil  actions,  admissions  are  re-  , 
ceivable  in  evidence,  provided  the  compulsion,  under  which 
they  are  given,  be  legal,  and  the  party  was  not  impos- 
ed upon  or  under  duress.  (3)  Thus,  it  has  been  held,  that 
an  examination  before  *commissioners  of  bankrupt    was  evi-  [  *368  ] 

(2)  Waldridge  v.  Kennison,  1  Esp.  lion  of  witnesses  to  answer  questions 
N.  P.  C.  143.  Bayley  on  Wills,  379,  subjecting  them  to  civil  actions.  The 
4lh  edit.  statute,  which  compels  them    to  answer, 

(3)  See    per   Lord    Ellenborough,    in     appears  to  presume,  that    the  answer    of 

Slack  V.  Buchanan,    Peake,    5.     Collet  wiinesses,  though   compulsory,    may    be  ' 

t).  Keith,  4  Esp.  21 12, where  the  witness  used    against    them    as    admissions.     In 

was  examined  on  a  trial,  and   was   stop-  another  statute  7  .^  8  G.  4,  c.  29,  com- 

ped  before  he  had    concluded    his    testi-  pulsory  exatninations  are    rendered  inad- 

mony.      Stockfleth    v.    De    Tastet,     4  missible  upon  indictments  for   the   ofien- 

Campb.  10.  Vide  infra,  on   the  obliga-  ces  thereby  created. 


(a)  See  8  Pick.  254.  In  Hyde  v.  Stone,  7  Wend.  354,  which  was  an  ac- 
tion of  trover,  a  demand  was  made  of  the  defendant  for  the  property,  when 
he  admitted  that  most  of  the  prooerty  had  been  sold  or  destroyed  ;  the  re- 
maining articles  then  produced  by  him  were  proved  to  be  of  little  value. 
Held,  that  such  an  admission  did  not  come  within  the  principle  of  admis- 
sions made  with  a  view  to  a  compromise. 

The  admission  of  particular  items  of  an  account,  or  the  admission  of  par- 
ticular facts,  independent  of  an  offer  to  pay,  are  not  of  the  same  character 
as  an  offer  to  pay  money,  by  way  of  compromise,  to  get  rid  of  an  action.  2 
Pick.  285  ;  4  id.  374  ;  5  Muinf.  507.  But  the  offers  of  sums,  prices,  or  pay- 
ments, made  during  an  attempt  to  coinpromise,  if  not  accepted,  are  not  ad- 
missible against  the  party  making  them,  either  for  the  purpose  of  proving 
his  liability,  or  fixing  the  amount;  but  the  admission  of  facts  ponding  a  ne- 
gotiation for  settling  the  suit  are  of  a  different  character;  the  latter  are 
good  evidence  against  him.     5  Mon.  R.  3G3. 

In  a  conversation  about  the  settlement  of  a  controversy  in  respect  to  the 
construction  of  the  draw  of  a  bridge,  the  admission  of  one  of  the  defend- 
ants was  admitted  to  show  that  the  draw  was  not  complete  ;  Hosmer,  C.  J., 
saying; — "It  is  never  the  intendment  of  the  law  to  shut  out  the  truth  ;  but 
to  repel  any  inference,  which  may  arise  irom  a  proposition  made,  not  de- 
signed to  admit  the  existence  of  a  fact,  but  to  buy  one's  peace.  If  an  ad- 
mission, however,  is  made,  because  it  is  a  fact,  the  evidence  to  prove  it  is 
competent,  whatever  motive  may  have  prompted  to  the  declaration."  Hart- 
ford Bridge  Co.  v.  Granger,  4  Conn.  142. 


320  Hearsay  Evidence.  [Ch.  18, 

dence  against  the  party  making  it.  (1 )  And  this,  notwith- 
standing the  party  miglit  have  demurred  to  the  questions,  as 
exposing  him  to  penaUies. 

With  regard  to  criminal  trials,  it  has  indeed  been  ruled,  that 
an  examination  before  a  committee  of  the  House  of  Commons, 
Avas  evidence  in  the  trial  of  a  misdemeanor  ;  (2)  though  it 
was  objected,  that  the  party,  against  whom  the  admission 
was  used,  could  not  have  refused  to  answer  the  question,  with- 
out being  punished  for  a  contempt  of  the  House.  But  in  a 
late  case,  it  was  held,  that  the  balance  sheet  of  a  bankrupt, 
given  on  oath  under  his  commission,  was  not  admissible 
against  him  upon  a  criminal  charge  for  concealing  his  ef- 
fects. (3) 

Indirect  There  is  a  species  of  admissions,  wherein  the  existence  and 

truth  of  the  lact  to  be  proved  is  assumed  in  the  expressions, 
which  are  given  in  evidence.  The  expressions,  in  such  ca- 
ses, are  received  as  admissions  of  the  fact,  though  they  were 
used  for  a  different  purpose  from  that  of  acknowledging  it  ;  and, 
as  admissions  they  are  allowed  to  supersede  the  necessity  of 
producing  more  direct  evidence. 

Thus,  where  in  an  action  against  the  acceptor  of  a  bill,  his 
attorney  gave  notice  to  produce  "  all  papers  relating  to  a  bill," 

[  *369  1  ^(described  as  in  the  declaration)  "accepted  by  the  defendant." 
This  notice  to  produce  was  held  to  furnish  prima  facie  evi- 
dence of  the  acceptance  of  the  bill.  (1)  Where  an  auctioneer 
advertised  for  sale  the  property  of  J.  S.  a  bankrupt,  this  was 
held  to  be  evidence  of  the  title  of  the  assignees  in  an  action 
against  the  auctioneer.  (2)  An  undertaking  by  an  attorney  on 
the  record  to  appear  for  two  persons,  described  in  the  under- 
taking as  joint  owners  of  a  ship,  is  evidence  of  joint  ov/ner- 
ship.  (3) 

(1)  Stockfloth  ».  De  Taste,  4  Camb.  appears  to  be  foanded.  A  bond  with  a 
10.  Robson  V.  Alexander,  1  B.  St  P.  penalty  given  by  a  defendant,  alleging 
4-18.  Smithi^.  Be-ddnell,  I  Camp.  30.  himself  to  be  guilty  of  a  nuisance,  is  ev- 
jMilward  V.  Forbes,  4  Esp.  172.  It  idence  upon  a  trial  for  the  misdemeanor, 
would  seem  that   such   an    examination  Re.x  v.  Neville,  Peake,  91. 

could  not  be  used  as  evidence  of  an   ac-  (1)  Hill  r.  Squire,  R.  8f  M.  282. 

count  stated,  Tucker  v    Barrow,  7  B.  &  (2)  Maltby  v.  Christie,   1  Esp.    340, 

C.  624.     See  Smith  B.Beadnal,  1  Camp,  commented  on  16  East,    193,    the    evi- 

50.  dence  was  said  to  be  conclusive,  on    the 

(2)  Rex  V.  Merceron,2  Stark.  C.  366.  ground  that  it  imported  an  authority  from 
The  evidence  was  admitted  upon  an  in-  the  assignees  ;  for  the  bankruptcy  would 
dictment  for  a  misdemeanor.  The  de-  have  put  an  end  to  every  authority, 
fendant  had  been  compelled  to  appear  which  the  bankrupt  might  have  given  to 
before  the  committee.     The  doctrine   of  Bell  the  goods. 

confessions  does  not  appear  to  have  been  (3)  Marshall  u.  Cliff,   4  Camp.    133. 

adverted  to.  To    state    upon   an    appeal   that  those 

(3)  Re.\  V.  Brilton,  1  M.  &  Ro.  297,  against  whose  acts  the  complaint  is  made 
by  Patterson  J.,  and  Alderson,  J.  Vide  are  Justices,  is  an  admission  of  their 
infra,  the  doctrine  of  Confessions,  upon  jurisdiction  :  Rex  v.  Fisher,  Cald.  135. 
the  principles   of  which  the   distinction 


Sect.  1.]  Of  Admissions.  327 

There  is  another  species  of  implied  admission,  where  a  par-  l"jj^ji^'^ 
ty  has  assumed  a  particular  character,  or  where  by  his  con-  sions.  (a) 
duct  or  language  in  the  transaction  in  question,  or  in  previous 
transactions  of  a  similar  nature,  he  has  assumed  the  existence 
of  the  title  upon  which  the  opposite  party  relies.  In  speak- 
ing of  cases  of  this  latter  description,  Lord  EUenborough  ob- 
serves, in  Dickenson  v.  Coward,  (4)  "I  take  it  to  be  quite 
clear  that  any  recognition  of  a  person  standing  in  a  given  re- 
lation to  others,  is  prima  facie  evidence  against  the  person 
making  such  recognition,  that  such  relation  exists." 

On  an  information  against  a  military  officer  for  making 
false  returns,  it  is  sufficient  to  prove  that  he  acted  in  the  char- 
acter alleged  in  the  charge,  without  adducing  direct  evidence 
of  his  appointment.  (5)  In  an  action  for  penalties  against  a 
collector  of  taxes,  proof  of  his  collecting  the  taxes  is  sufficient 
^evidence  of  his  being  collector,  though  his  appointment  is  [  *370  ] 
by  warrant  under  an  act  of  parliament.  (I)  In  an  action 
against  a  clergyman  for  non-residence,  the  acts  of  the  defend- 
ant as  parson,  and  his  receipt  of  the  emoluments  of  the  church, 
have  been  considered  good  evidence  against  him  of  his  being 
parson,  without  formal  proof  of  his  title.  (2)  Upon  an  indict-  " 
ment  for  embezzlement  against  a  letter-carrier,  proof  that  he 

(4)  1  B.  4-  A.  679,  recognised  by  (2)  By  Chambre,  J.,  1  N.  R.  210. 
Lord  Lyndhurst,  in  Inglis  v.  Spence,  1  Bevan,  q  t.  v.  Williams,  3  T.  R.  635, 
Cr.  M.  ^  R.  436.  It  lias  been  said  that  n.  (a).  The  evidence  is  spniien  of  by 
payment  of  money  is  evidence  against  Lord  Kenyon  as  decisive.  See  Rex  v. 
the  payer  of  the  title  of  the  party  recei-  Kerne,  2  St.  Tr.  964.  Rex  v.  Brom- 
ving  it,  but  is  not  evidence  against  the  wich,  2  St.  Tr.  966,  proof  of  officia- 
receiver  that  the  payer  was  the  party  ting  as  a  Romish  priest,  held  evidence 
bound  to  pay  it.  James  v.  Birn,  2  Sim.  of  taking  orders.  And  see  Rex  v.  Top- 
^-    Stu.  606.  ham,  4  T.  R.  126.      Proof  that  A.    B., 

(5)  Rex  V.  Gardner,  2  Camp.  513.  as  the  proprietor  of  a  newspaper,  had 
The  fact  of  acting  appeared  from  the  given  security  for  the  payment  of  duties 
returns  themselves,  in  which  the  defend-  on  advertisements,  and  had  from  time 
ant  described  himself  as  Major-Com-  to  lime  applied  to  the  stamp  office,  con- 
mandant.  cerning  duties  on  the  paper,  was  licid  to 

(I)   Lister,  q.  t.  t).    Priestly,  Whitew.  be  evidence  of  his    being  the    publisher. 

67.     In  several    of  the  cases    under  this  W  here  a  lessee  covenanted,  that  a   lease 

bead,  the  evidence  would  be    receivable  should    be    avoided,    on    a    bankruptcy, 

indep(!ndently  of  the  doctrine  of  adniis-  proof  of  submissson  to  a  commission  was 

sionis  in    consequence    of  the    rule,    that  held  to  be  evidence  of  bankruptcy,  Doe 

acting  in  a  particular  capacity  is  presump-  v.  Hodgson,    per   Lord    'I'cnterden,  Sitt. 

tive  evidence  of  a  due  appointment.  after  Easter  Term,  1823,  2  St.  Ev.    20. 


[a]  Although  an  agent  acts  contrary  to  his  duty  and  his  instructions,  the 
principal  shall  not  be  permitted  to  impeach  his  conduct,  if  he  with  a  knowl- 
edge of  all  the  facts  adopts  his  acts.  lie  must  dissent  and  give  notice  in  a 
reasonable  time,  or  his  assent  to  what  has  been  done  shall  be  presumed. 
Cod  wise  V.  Hacker,  1  Caines  R.  .539;  1  J.  Cas.  110;  12  J.  R.  300. 

Where  the  defendant  draws  the  plaintiff  in  to  perform  labor,  on  a  fraudu- 
lent representation  that  he  had  title  to  the  land  on  which  a  mill  was  to  be 
erected  and  could  communicate  a  right  to  the  plaintiff;  held,  that  the  plain- 
tiff was  entitled  to  recover  pay  for  such  labor  on  an  implied  promise  on  the 
common  count     Richard  v.  Stanton,  1(>  Wend.  19. 


328  Hearsay  Evidence.  [Ch.   18. 

acted  as    such,  was  held  sufficient  without  shewing  his  ap- 
pointment. (3) 

In  an  action  for  penalties  under  the  post-horse  act,  brought 
by  the  plain tifi'  as  I'arnier-gencral,  proof  of  his  appointment 
was  dispensed  with,  because  the  defendant  had  previously  ac- 
counted with  him  as  farmer-general.  (4)  In  an  action  for  sub- 
traction of  tithes,  proof  of  the  defendant's  former  acknowledg- 
ment of  the  plaintilf's  title  to  the  tithes,  was  thought  to  be 
sufficient  evidence  as  against  the  defendant,  a  wrong  doer.  (5) 
In  an  action  by  the  clerk  of  the  trustees  of  a  turnpike  road, 
[  *371  ]  *brought  against  one  of  the  trustees,  the  fact  that  the  plain- 
tiff had  acted  as  clerk,  and  that  the  defendant  had  acknowl- 
edged him  as  such,  is  evidence  of  the  plaintiff's  appoint- 
ment. (1)  (a)  In  an  action  by  the  assignee  of  a  bankrupt,  proof 
that  the  defendant  had  attended  a  meeting  of  the  commission- 
ers, and  exhibited  an  account  between  him  and  the  bankrupt, 
claiming  certain  deductions,  and  afterwards  made  the  plaintiff 
a  part  payment,  this  was  held  to  be  prima  facie  evidence  of 
the  plaintiff's  title  to  sue  as  assignee  ;  but  the  Court  ob- 
served, that  it  Avas  certainly  not  conclusive.  (2) 

(3)  Barrett's  case,  6  C.  &  P.  1 24.         T.  R.  366.     Chapman  v.  Beard,  3  Anslr. 

(4)  Radford,  q.  t.   v.    Mackinlosli,    3     492. 

T.  R.  632.     And  see  Cross  I).  Kaye,    6  (1)  Pritchard  u.  Walker,    3    C.  &  P. 

T.  R.  663,  and  1  N.  R.  205,  211.  Pea-  212. 

cocU  V.  Harris,  10  East,  105.     In  Sriiilh  (2)   Dickenson  v.  Coward,  IB.  &  A. 

t).  Taylor,  1  N.    R.    211.     Chambre  J.,  679.     Inglis  u.    Spence,  1  Cr.  M.  &  R. 

appears  to  have  considered    the    case    of  432,  admission  of  title  in    letters    to   so- 

Radford  u.  Mackintosh,  as  deciding  that  licitor    of  commission,    see    Crofton    v. 

the  evidence  was  an  estoppel,  for  he  says,  Poole,  1  B.  .^  Ad.  56S.     Rex  r.  Barnes, 

that   he  thought  the  principle  was  pushed  1  St.  243    Clarke  v.  Clarke,  6   Esp.  61. 

too  far  in  that  decision;  and  that  it  would  I>eke  v.   Howe,    6  Esp.  20.     Mercer   v. 

have  been  just,  if  the  evidence  had  been  Wise,  3  Esp.  219.     Havelock  v.  Cook, 

decided  as  enough  to  put  the  defendant  5  T.  R.  655.     Pope  v.  Monk,  2  C.  i^-  P. 

upon  proof  of  a  negative."  As  to  the  ef-  112.     Walker  v.    Burnell,    Doug.    303. 

feet  of  admissions,  whether  they  are  con-  Molt  t).   Mills,    3  C.  &  P.    197,    on    the 

elusive    by    way    of    estoppel,   or    only  efleot  of  6  Geo.  4,  c.  16,  as  to  bankrupt 

prima  facie  evidence,    vide    infra,    p.  petitioning  for    his    discharge.       Further 

378  on  the  effect  of  admissions  in  bankruptcy, 

(5)IN.  R.  210.     3  T.  R.   635.      4  infra,  Z'l^,  n- 

[a]  Proof  that  he  acted  as  such  is  admissible  to  prove,  that  peace  officers, 
justices  of  the  peace,  and  other  public  officers  acted  in  those  characters, 
without  producincf  their  appointments.  Potter  v.  Luther,  3  J.  R.  431  ;  Reed 
V.  Gillet,  12  id.  296;  6  N.  H.  R.  352. 

General  reputation  that  a  tax  collector  acted  as  such,  was  held  to  be 
prima  facie  proof  that  he  was  duly  authorized  to  act  in  that  capacity.  El- 
dred  v.  Sexton,  5  Ohio,  216.  See  also  10  Wend.  2.54  and  3  Conn.  475.  So, 
general  reputation  that  a  man  acted  as  an  assistant  to  a  former  deputy  sur- 
veyor, or  proof  that  many  drafts  or  field  notes  remaining  in  the  office  are  in 
the  hand  writing  of  a  particular  man,  are  evidence  that  he  was  an  assistant. 
See7S.  &R.  317;  1  Penn.  R.  1. 

To  prove  a  general  allegation  that  a  party  holds  a  particular  office,  it  is 
sufficient  to  show  that  he  acts  in  that  capacity  ;  such  assumed  character  is 
sufficient  against  the  party,  as  it  operates  by  way  of  admission.  Dean  w. 
Gridley,  10  Wend.  254.     There  are  cases  where  this  would  not  be  suffi- 


Sect.   1.]  Of  Admissions.  329 

111  an  action  against  the  defendant  for  slander,  for  charging 
the  plaintiff  with  being  a  swindler,  and  threatening  that  he 
would  have  him  struck  off  the  roll  of  attornies,  the  Court  was 
of  opinion,  that  the  defendant's  threat  amounted  to  a  distinct 
acknowledgment  that  the  plaintiff  was  an  attorney,  and  dis- 
pensed with  further  proof.  (3) 

Upon  the  principle  of  the  above    mentioned  cases,    two   of 
the  Judges  of  the  Court  of  Common  Pleas    were   of  opinion, 
that  the  plaintiff  was  entitled  to  recover  in  the  case  of  Smith 
V.  Taylor.  (4)     That  was  an  action  for  defamation,  in  which  ^J°^^f^  ""' 
the  plaintiff  averred,  that  he  was  a  physician,  and    exercised  qJaiidca- 
*the  profession,  and  that  the  words  were   spoken  concerning  r°*o'ro  i 
him  as  a  physician.     It  appeared,  that  the  words  did  not  im-  '■  -' 

pute  want  of  qualification  by  degree,  but  only  want  of  skill 
in  practice  ;  and  that  the  defendant  called  the  plaintiff  "  Dr. 
*S*.'"  when  he  spoke  the  words:  and,  further,  the  defendant, 
as  an  apothecary,  had  followed  the  directions  of  the  plaintiff 
as  a  physician,  in  the  business  out  of  which  the  cause  of  ac- 
tion arose.  These  circumstances  were  considered  by  two  of 
the  Judges,  against  the  opinion  of  the  other  two,  as  sufficient 
prima  facie  evidence  of  the  plaintiff's  qualification.  On  the  sl'impiy"' 
other  hand,  if  the  words  imply  a  charge,  that  the  plaintiff  ing. 
was  not  qualified  to  act  in  the  particular  character  which  he 
assumed,  it  has  been  held  that  the  qualification  ought  to  be 
proved,  and  that  it  will  not  be  sufficient  to  show  his  acting  in 
that  capacity.  ( I) 

(3)  Ferryman  v.  Wise,  4  T.  R.  366,  (4)  1  New  Rep.  196,  hy  Mansfield, 
recognised  in  I'earce  i'.  \Vh  ile,  5  B.  &  C.  J.,  nnd  Heath,  J  ;  but  Rook,  J.,  and 
C.  39,  thereby  superseding  the  necessity  Chambre,  .T.,  were  of  opinion,  that  the 
of  proving  tiie  admission  as  an  attorney,  words  did  not  admit  the  qualification, 
or  a  copy  of  the  Roil.  In  an  action  (1)  See  the  judgnieiil  of  Mansfield, 
for  bribing  one  who  had  a  vote  at  an  C.  .T.,  in  I  New  Rep.  20  t,  207.  Pick- 
election,  the  very  offer  to  bribe  is  ovi-  ford  v.  Gutch,  8  T.  II.  3.')5,n.  (a);  Moi- 
dence  against  the  defendant,  that  the  ses  v.  Thornton,  8  T.  11.  303,  where  iho 
party  solicited  had  a  right  to  vote,  words  imply  mere  negligence  or  igno- 
Combe  v.  Pilt,  Burr.  1586.  Regg  v.  ranee,  without  admitling  the  plaintilf  to 
Cargenven,  2  Wils.  395.  In  both  the  be  qualified,  and  the  plainlilF  avers  that 
cases  the  person  bribed  was  admitted  to  he  is  rjualified,  lie  vviil  be  bound  to 
vote.  But  Lord  Mansfield  and  the  rest  prove  his  qualification,  I  N.  K.  204,  207. 
of  the  Court  held,  that  a  man  wlio  hnd  And  see  Collins  v.  Carnngie,  1  Ad.  ^  E, 
given  money  to  another  for  his  vote,  703,  where  it  is  said  that  a  [)erson,  corn- 
should  not  be  admitted  to  say  that  he  plaining  of  .Slander  upon  him  in  a  par- 
had  no  vote.  .As  to  the  conclusive  ef-  licular  character,  iiiu>t  ])rove  that  he 
feet  of  the  admission,  vide  in/ra,  p.  possesses  that  character,  when  the  slan- 
384,  n.  der  does  not  admit  it. 


cient:  for  iastance,  had  the  (leforulant  booti  prosecuted  f.ir  refusing  to  ac- 
cept the  office,  then  the  hijjhest  evidence  must  he  pnuhtced.  id.  In  that 
case,  defendant  was  sued  as  overseer  of  nn  lii<rliwa,y  for  neirlcct  of  duty  for 
which  he  was  punishable  hy  a  penalty.  Held,  that  the  acts  nnd  adinissions 
of  the  defendant  were  siifTicient  evidence  of  the  character  and  of  the  dis- 
trict in  which  he  acted,  id. 

42 


330 


Hearsay  Evidence. 


[Ch.   18. 


Admis- 
sions by 
deineniior. 

Acquies- 
cence, {a) 


111  the  preceding  cases,  the  admissions  were  in  the  form  of 
written  or  verbal  statements  made  by  the  parties,  or  of  acts 
done  by  them.  But  in  some  cases,  it  is  allowable  to  give  evi- 
dence of  written  or  verbal  statements,  or  of  acts  done  by  oth- 
ers, which  a  party  to  be  affected  by  them  is  proved  to  have 
seen  or  heard,  and  thus  to  use  the  conduct,  expressions,  or  de- 
meanor of  the  party,  as  evidence  by  way  of  admission  against 
him.  (2)  The  evidence  in  such  cases  is  altogether  presump- 
tive in  it's  quality  and  character. 

(2)  A  notorious  instance  of  the   mis-  examine    Lord   Howard,    the    Attorney 

application  of  this  kind  of  evidence   oc-  General  retorted  "  Silence — you    know 

curred  in    the  trial    of  Algernon  Sidney,  the  proverb." 
Upon  his  indignantly   refusing  to    cross- 

(a)  Acquiescence  or  waiver  may  he  either  express  or  implied  from  cir- 
cumstances ;  as  if  A.  contract  to  build  a  house  for  B,  of  a  certain  description 
and  complete  it  within  a  certain  time,  for  a  specified  sum,  but  should  fail 
in  complying'  with  the  terms  of  the  contract  ;  still,  if  B.  should  take  pos- 
session of  the  house,  or  in  any  way  accept  it,  and  avail  himself  of  A's.  la- 
bor and  expense  in  buildintj  it,  he  may  recover  a  reasonable  compensation 
for  his  labor  and  expense.  By  Mellen,  C.  J.  in  Hayden  v.  Madison,  7  Greenl. 
76.     See  also  2  C.  &  M.  214. 

There  have  been  different  opinions  in  different  courts,  and  sometimes  in 
the  same  court  at  different  times  ; — whether  when  a  party  has  entered  into 
a  special  contract  to  perform  work  for  another,  and  to  furnish  materials,  and 
the  work  is  done  and  the  materials  furnished,  but  not  in  the  manner  stipu- 
lated for  in  the  contract,  yet  nevertheless  the  work  and  materials  furnished 
are  of  some  value  and  benefit  to  the  other  contracting  party,  he  may  recover 
oti  a  quantum  meruit  for  tlie  work  and  labor  done,  and  on  a  quantum  vale- 
bant for  the  materials.  The  weight  of  modern  authority  is  in  favor  of  the 
action,  and  upon  the  whole,  it  is  conformable  to  justice,  that  the  party  who 
has  the  possession  and  enjoyment  of  the  materials  and  labor  of  another, 
shall  be  hold  to  pay  for  them,  so  as  in  all  events  he  shall  lose  nothinjj  by  the 
breach  of  the  contract.  See  Hay  ward  V.Leonard,  7  Pick.  181;  Mead  r. 
Degolyer,  16  Wend.  632,  by  Bronson,  citing  Jennings  a.  Camp.  13  J.  R.  94 ; 
Jewell  V.  Scroeppel,  4  Cowen,  264 ;  2  Stark,  ev.  [)7,  8— Bull.  N.  P.  139. 
Keek's  case  also  cited  in  Bull.  N.  P. — Wadleigh  v.  Sutton,  6  N.  II.  15; 
Smith  V.  Lowell,  8  Pick.  178.  And  see  also  Chapel  v.  Hicks,  2  C.  &  M. 
214. 

If  a  person  purchases  an  article  and  suffers  it  to  remain  on  his  premises 
for  two  months  without  examination,  and  then  finds  it  to  be  unfit  for  use,  he 
cannot  after  that  length  of  time,  avail  himself  of  the  objection  in  answer  to 
an  action  for  the  price,  unless  some  deceit  has  been  practised  with  regard 
to  the  article.     Percival  v.  Blake,  2  C.  &  P.  514. 

But  where  the  plaintiff  had  departed  from  the  contract  and  claimed  to  re- 
cover for  work  beyond  his  contract,  it  was  held  to  be  incumbent  on  him  to 
show  that  defendant  not  only  knew  of  the  departure,  but  also  must  have 
known  that  such  departure  would  be  attended  with  an  increased  expense. 
Lovelock  V.  King,  2  Mo.  &  M.  60. 

Where  plaintiff  had  contracted  to  make  a  road  for  a  town  ;  and  one  half 
of  the  sum  agreed  upon  to  be  paid  for  the  work,  was  to  be  paid  when  the 
work  should  be  completed,  and  the  other  half  at  a  subsequent  period  ; — the 
town  paid  the  first  half,  knowing  that  86  rods  of  the  road  had  not  been  com- 
pleted, and  making  no  objection  on  that  account.  Held,  that  this  amounted 
to  a  waiver  of  objection  on  account  of  the  plaintiff's  non-compliance  with 
the  special  contract,  and  an  acceptance  of  the  benefit  of  the  plaintiff's  ser- 
vices, and  a  waiver  of  all  objection  to  his  right  to  recover  the  remaining 
half  of  the  agreed  sum,  on  completion  of  the  road.  Hayden  v.  Madison,  7 
Greenl.  R.  76. 


Sect.    1.]  Of  Admissions.  331 

It  very  commonly  happens,  that  evidence  of  tlie  description 
referred  to  has  the  effect  of  misleading  jm-ies,  who  are  fre- 
quently influenced  by  it,  in  consequence  of  giving  credit  to 
it  *as  hearsay  testimony,  and  are  unable,  notwithstanding  any  [  *373  ] 
directions  from  a  Judge,  to  regard  it  solely  as  exhibiting  de- 
meanor and  conduct.  And  in  many  instances,  especially 
where  no  observation  has  been  made  by  the  party  against 
whom  the  statement  is  made,  on  hearing  it,  the  evidence  is 
particularly  liable  to  produce  erroneous  conclusions.  An  ac- 
quiescence in  the  truth  of  the  statement  is  frequently  infer- 
red, though  that  inference  may,  from  a  variety  of  causes,  be 
incorrect.  (1)  Thus  the  evidence  is  not  only  fallacious  with 
reference  to  it's  object,  but  in  it's  collateral  effect  is  prejudi- 
cial to  the  investigation  of  truth.  The  acquiescence  of  a  par- 
ty is  still  less  entitled  to  consideration,  where  he  has  no  means 
of  personally  knowing  the  truth  or  falsehood  of  a  state- 
ment. (1) 

A  notice  to  quit  at  a  certain  time  is  evidence  that  the  ten-  ' 
ancy  commenced  at  that  period,  if  the  notice  was  served  per- 
sonally on  the  tenant,  and  if  he  made  no  objection  to  the  time 
of  quitting  mentioned  in  the  notice.  (3)  The  circumstance  of 
his  not  making  such  an  objection  has  been  considered  as  pri- 
ma facie  evidence  of  admission  and  acquiescence.  So,  it  has 
been  held,  the  demeanour  and  conduct  of  a  bankrupt,  pend- 
ing the  investigation  of  his  accounts  before  commissioners  of 
bankrupt,  may  amount  to  an  admission  of  a  petitioning  credit- 
or's debt,  though  what  was  done  before  the  commissioners 
did  not  derive  any  authority  from  It's  being  done  before  them 
as  commissioners  or  as  arbitrators.  (4)  And  the  forbearing 
from  acts  *of  ownership  and  neglecting  to  interpose,  whilst  [  *374  ] 
another  person  exercises  such  acts,  or  incurs  expenses  in 
buildings  or  alterations  inconsistent  with  a  title  afterwards 

(1)  This  species  of  evidence  is  very  (2)  See  per  Parke,  J.,  in  Hayslep  v. 
commonly  used  in  criminal  cases,  al-  Gymer,  1  Ad.  &  E.  165,  and  per  Pat- 
though  it  appears  to  be  somewhat  incon-  teson,  J.,  ib. 

si^tent  to  hold,  that  the  prisoner's  si-  (3)  Doe  d.  Ciarges  r.  Foster,  1  3  East, 
lence  on  hearing  an  accusation  is  evi-  405.  Doe  d.  Leicester  v.  Driggs,  2t 
dence  against  him,  when  his  denial  of  Taunt.  109.  Doe  d.  Baker  u.  VVoomb- 
ihe  charge  upon  such  an  occasion  would  wells,  2  Camp.  559.  If  the  ten;int  die) 
not  be  an  evidence  for  him.  On  the  not  look  at  the  notice  or  could  not  read, 
principle  that  the  evidence  is  received,  the  presumption  of  acquiescence  will  be 
not  on  the  ground  of  credit  given  to  the  repelled.  Thomas  d.  Jones  v.  Thomas, 
liearsay  narrative,  but  on  the  ground  of  2  Camp.  647.  Doe  v.  Fo.ter,  13  East, 
it's  apparent  effect  in  the  prisoner's  de-  405.  Doe  v.  Briggs,  2  Tacot.  109. 
meanor,  it  has  been  held,  that  what  is  (4)  Jarrat  r.  Leonard,  2  M.  S,- S.  269, 
said  in  the  presence  of  a  prisoner,  by  and  see  Smith  v.  Moon,  I  M.  ^  I\L  460. 
his  wife,  is  receivable  in  evidence  against  Key  v.  Shaw,  8  Bing.  321),  that  a  trad- 
him  Ilex  v.  Smithies,  5  C.  ij"  P.  332.  er  hearing  himself  denied,  and  not  corn- 
See  Rex  V.  Swatkins,  4  C.  ^  P.  548.  ing  forward,  may  thereby  commit  na  aot 
1  East's  P.  C.  357.     B.  N.  P.  23,  of  bankruptcy. 


332  Hearsay  Evidence.  [Ch.   18. 

claimed,  is  evidence  for  the  jury  in  the  nature  of  an  admis- 
sion. (1) 

In  an  action  brought  to  recover  back  notes  dehvercd  to  the 
defendant  by  the  plaintiff,  the  plaintiff  proved  that  the  de- 
fendant, who  was  the  executor  of  a  deceased  person,  having 
questioned  the  plaintiff  as  to  her  having  possession  of  some 
property  belonging  to  the  deceased,  the  plaintiff  handed  over 
the  notes  to  the  defendant,  stating  that  the  deceased  had  giv- 
en them  to  her :  the  defendant  did  not  deny  the  statement, 
but  had  no  means  of  knowing  it's  truth  or  falsehood:  it  was 
held,  that  although  such  evidence  of  acquiescence  in  the  truth 
of  the  statement  was  an  admission  entitled  but  to  very  little 
weight,  yet  that  it  was  properly  submitted  to  a  jiny.  (2) 

But  in  Pairlie  v.  Deiiton,  (3)  it  was  held  by  Lord  Tenter- 
den,  that  if  the  plaintiff  write  a  letter  to  the  defendant, 
which  the  defendant  does  not  answer,  the  plaintiff  has  no  right 
to  have  the  contents  read  at  the  trial,  by  way  of  admissions 
[  *375  ]  from  Acquiescence,  (a)  It  was  stated  by  Chief  Justice  Best, 

(1)  Doer.  Pye,  1  Esp.  364.     Neale     162. 

»'.  Parkin,  1  Esp.  229.  Hollis  v.  Gold-  (3)  3  C.  ^  P.  103.  Lord  Tenterden 
finch,  1  B.  (^  C.  222.  Steel  r.  Prickett,  observed,  that  what  is  said  to  a  man  be- 
2  St.  471.  Stanley  v.  White,  14  Easi,  fore  his  face,  he  is  in  some  degree  called 
332.  4  T.  R.  516.  1  B.  ^^  C.  222.  on  to  contradict,  if  he  does  not  acqui- 
Jarret  v.  Leonard,  2  M.  ^  S.  265.  Mor-  esce  in  it  ;  but  the  not  answering  a  let- 
ris  V.  Burdett,  1  Camp.  218.  Doe  v.  ter  is  quite  different  ;  and  it  is  too  much 
Allen,  3  Taunt.  78.  Concerning  acts  to  say,  that  a  man,  by  omitting  to  an- 
amounling  lo  a  recognition  of  l^awful  swer  a  letter  at  all  events,  admits  the 
occupancy,  audi  as  will  be  a  defence  up-  truth  of  the  statements  the  letter  con- 
on  an  ejectment.  Doe  u.  Cadwallader,  tains.  It  was  held  in  the  same  case,  ihat 
2  B.  .^  Ad.  478,  in  which  Doe  v.  Hales,  a  line  of  the  letter  might  be  read  which 
7  Binn.  322,  is  doubted.  As  to  cases  contained  a  demand  of  a  certain  amount, 
between  landlord  and  tenant,  where  sub-  but  not  any  other  part  which  stated  any 
sequent  acts  amount  to  a  waiver  of  a  no-  supposed  fact  or  facts.  See  Rex  v. 
lice  to  quit,  1  H.  Bl.  311.  Cowp.  243.  Plumer,  R.  4-  R.  264,  that  a  letter  found 
6  T.  R.  2J9.  16  East,  53.  Acts  of  in  the  possession  of  a  prisoner  is  not 
ownership  are  admissible  independently  evidence  of  it's  contents  ;  as,  for  in- 
of  acquiescence.  Per  Parke,  B.,  in  stance,  to  show  that  a  bill  was  enclosed 
Jones  r.  Williams,  2  M.  4-  W.  327.  in  it. 

(2)  Hayslep  v.  Gymer,  1   Ad.   ^  E. 


(a)  If  a  merchant  sends  an  account  to  anotfier  in  a  foreign  country,  and 
he  lieeps  it  by  him  any  length  of  time,  as  two  years,  without  objection,  the 
rule  of  courts  and  merchants  is,  that  it  is  understood  as  a  stated  account. 
See  1  Bald.  R.  536 ;  15  J.  R.  409,  424.  Where  the  parties  live  in  England, 
not  objecting  to  the  account  by  the  second  or  third  mail  is  considered  as  an 
allowance  of  it.  2  Vern.  276 ;  1  P.  Wms.  653  ;  1  Bald.  R.  536.  The  time 
within  which  an  account  shall  be  taken  as  a  stated  account  unless  objected 
to,  cannot  be  definitely  fixed,  it  depends  on  the  circumstances  of  the  case, 
whether  an  acquiescence  or  presumed  agreement  to  the  correctness  of  the 
account  exists.  If  it  does,  and  ihe  party  does  not  account  for  his  silence, 
the  account  is  considered  as  settled  to  his  satisfaction,  and  the  party  claim- 
ing the  balance  is  not  bound  to  prove  the  items  of  his  account,  id.  But,  the 
party  charged  may  show  errors  or  omissions  apparent  in  the  account,  but 
the  burthen  of  showing  them  is  on  him  who  receives  and  keeps  the  account 
without  objection,  and  the  errors  must  be  specified  ;  they  will  not  be  cor- 


Sect.   1.]  Of  Admissions.  333 

in  Child  v.  Grace,  (1)  to  be  a  rule  applicable  to  this  subject, 
that  what  is  said  by  a  party  to  a  suit  to  the  opposite  party  may 
sometimes  be  evidence,  but  not  what  is  said  by  a  stranger,  un- 
less it  draws  forth  an  answer :  and  added,  that  the  same  dis- 
tinction had  been  made  by  Chief  Justice  Gibbs. 

In  some  cases  the  possession  of  documents,  or  the  circum-  i,y  "JJos^i"". 
stance  that  a  party  has  access  to  them,  has  been  considered  as  si""  "'' 
a  ground  for  affecting  persons  with  the  admission  of  the  facts 
stated  in  them.  Thus,  in  an  action  against  a  tavern  keeper, 
it  appeared  that  the  defendant  belonged  to  a  club,  which  was 
held  at  the  plaintiff's  house,  and  that  in  a  room  where  the 
club  met,  a  book  used  regularly  to  be  kept  open,  in  which  the 
plaintiff's  servants  entered  the  articles,  as  they  were  ordered 
by  the  members  of  the  club,  who  had  hereby  an  opportunity 
of  inspecting  and  correcting  the  account  :  Lord  Kenyon  ad- 
mitted the  book  as  evidence  of  the  delivery,  though  it  was 
not  proved,  that  the  servants  who  made  the  entry  were  dead, 
nor  was  their  absence  accounted  for,  and  only  their  hand- 
writing was  proved.  The  daily  account  in  the  book  was  in  . 
this  case  considered  as  tantamount  to  a  bill  delivered  and  ad- 
mitted by  the  defendant.  (2)  And  apparently  upon  the  same 
principle  it  was  held,  that  an  entry  in  the  books  of  the  South 
Sea  Company,  of  the  minutes  of  a  license  granted  by  them, 
was  admissible  in  evidence,  without  calling  as  a  witness  the 
officer  who  made  the  entry.  (3)  (a) 

*Though  the  rolls  of  a  manor  are  accessible  to  all  the  copy-  [  *376  ] 
holders,  yet  in  questions  between  them  and  the  lord  of  the 

(I)  2  C.  &  P.  193,  action'for  an  as-  (2)  Wiltzie  ?-.  Adam^on,  K.  B.  Sitt. 
sault.  The  evidence  tendered  was,  after  Mich.  Term,  17S9.  And  see  AI- 
what  a  magistrate  at  a  police  office  had  derson  c.  Chiy,  1  St.  Ca.  405,  after  a 
said,  in  the  presence  of  the  defendant,  person  was  proved  to  be  a  member  of 
respecting  tlie  assault.  The  Chief  Jus-  ,  a  society,  the  entries  in  a  book  contain- 
tice  observed,  that  the  counsel  were  diiv-  itig  a  record  of  the  proceedings  of  the 
ing  at  the  opinion  of  the  Magistrate,  society  produced  at  the  meetings,  and 
The  like  evidence  as  to  what  a  judge  open  to  the  inspection  of  all  the  mem- 
has  said  upon  the  trial  of  an  indictment,  bers,  were  admissible  against  him.  Kag- 
has  been  admitted  upon  an  action  for  a  gett  r,  Musgrove,  2  C.  &  P.  556. 
malicious  prosecution,  on  the  ground  (3)  Hodgson  v.  Fullarton,  4  Taunt, 
that  what  the  Judge  said,  was  in  the  787.  And  see  Hewitt  v.  riggot,5  C.  iV  P. 
hearsay  of  the  prosecutor  ;  but  as  the  77,  possession  of  letters.  Koe  f.  Raw- 
prosecutor  had  no  power  to  interpose,  it  liiis,  7  East,  290,  possession  of  survey, 
would  seem  that  the  reason  failed. 


reeled  on  doubtful  or  only  probable  testimony,  but  must  be  palpable,  the 
party  complaining  can  only  surcharge  and  faltjit'y,  but  cannot  open  the  ac- 
count generally,  unless  there  has  been  fraud  practised  upon  him  ;  2  Atk. 
Ill);  9  Ves.  2tj(j  ;  1  Cli.  Cas.  299  ;  1  Vern.  180 ;  2  B.  &.  C.  62 ;  it  is  the  law 
of  this  country;  7  Cranch  151;  and  a  settled  account  is  not  opened,  by 
beinof  introduced  into  a  second  account.  See  observations  of  Baldwin,  J. 
1  BaJdw.  R.  .'530. 

(a)  A  transcript  from  the  books  of  a  bank  is  a  mutual  acknowledgment  as 
to  the  money  dealings  of  the  bank  and  customer.    3  Pick.  9(5. 


334  Hearsay  Evidence.  [Ch.   18. 

manor,  it  would  seem  that  entries  on  tlie  rolls  of  the  manor 
are  not  generally  evidence  against  them  by  way  of  admis- 
sion. ( 1 )  But  in  questions  as  to  manorial  customs  between  copy- 
holders, or  between  copyholders  and  strangers,  it  seems  that 
entries  on  the  rolls  of  the  manor,  besides  being  evidence  of 
reputation,  independently  of  any  weight  they  may  derive 
from  being  admissions,  are  also  upon  this  ground  entitled  to 
some  additional  force.  (2)  And  the  possession  of  letters  and 
])aj)er  Avritings  by  prisoners,  may  alTect  them  with  the  impu- 
tation of  api)roving  or  acting  the  matters  contained  in  them. 
But  for  this  purpose  it  is  necessary,  that  the  jury,  should  be  sat- 
isfied that  the  letters  or  other  writings  were  in  the  possession 
of  the  prisoners  previous  to  their  apprehension.  (3)  In  an  ac- 
tion by  a  bankrupt  against  his  assignees,  depositions  of  per- 
sons enrolled  by  the  assignees  are  not  evidence  against  them 
as  admissions,  by  reason  of  the  enrolment.  (4) 

Although  partnership  books  are  evidence  against  partners 
as  being  the  acts  and  declarations  of  such  partners,  being 
kept  under  their  superintendence,  yet  the  books  of  a  corpor- 
ate company  are  not  evidence  against  a  member  of  the  com- 
pany, as  entering  into  a  contract  with  the  company  :  in  such 
respect,  he  is  to  be  regarded  as  a  stranger.  (5) 
A..imissioii  The  conduct  of  parties  frequently  affords  evidence  in  the 
>y  con  uc .  j^g^^^^j.^  ^^  aduiissious,  when  it  is  inconsistent  with  the  claims 
asserted  by  them,  although  it  be  not,  as  in  the  cases  before  no- 
[  *377  ]  ticed,  in  the  nature  of  acquiescence  in  the  acts  of  another  ^per- 
son. Thus,  in  an  action  of  debt,  evidence  that  the  plaintiff 
has  taken  the  benefit  of  the  insolvent  act,  and  has  not  insert- 
ed the  debt  in  question  in  his  schedule,  is  an  admission  of  it's 
not  being  due.  (1)  Where  a  tradesman  makes  out  an  account 
for  goods  sold,  in  the  name  of  a  particular  person,  it  must  be 
taken  that  they  Avere  furnished  upon  the  credit  of  such  per- 
son, unless  it  he  shewn,  by  unequivocal  evidence,  that  the 
credit  was  in  fact  given  to  another.  (2) 

But  the  deposition  of  a  witness,  taken  in  a  criminal  proceed- 

Admission    j^g  before  a  magistrate,  in  the  presence  of  the  party  charged, 

not  imp  le  .  .^  ^^^^  admissible  in  another  proceeding  against  that  party  :  in 

investigations  of  this  nature,  the  person  charged  has  not  the 

(1)  Dean  and  Chapter  of  Ely  r.  (4)  Chambers  u.  Bernasconi,  I  Cr. 
Caldecott,  7  Bing.  433.  An  ancient  M.  8f  R.  347.  A  feoffment  having  an 
steward's  booii  of  assessment  of  fines,  indorsement  of  living  seisin  is  not  evi- 
not  admitted  in  an  action  by  the  lord,  for  dence  of  the  fact  against  the  person  pro- 
copyhold  fines.  ducing  the  deed  from  his  custody  :    Doe 

(2)  Vide  infra,  as  \o  admissions  of  d.  Wilkins  u.  Lord  Cleveland,  9  B.  & 
persons,  in  pari  jure.     See  Gilb.  L.  Ev.  C.  870. 

235.     4  T.  R.    670.     5  T,  R.   26.     2  (5)  Hill  v.  Manchester  W.   W.,  5  R. 

M.  &  S.  92.      13  East,  10.     3  Wils.  63.  4- Ad.  875. 

3  T.  R.  162.     1  T.  R.  466.  (1)  Nichols  v.  Downes,  1  M.  ^   Ra. 

(3)  See    Home    Tooke's    case,    25  13. 

Howell,  120.    Watson's  case,  2  St.  140.         (2)  Storr  «.   Scott,  6   C.   &  P.   241, 


Sect.  1.]  Of  Adniissions.  335 

same  facility  of  interposing,  as  he  would  have  in  a  common 
conversation  ;  and  therefore,  the  same  inferences  cannot  be 
drawn  from  his  silence  or  his  conduct.  (3) 

Where  admissions  involve  matters  of  law  as  well  as  matters  A'!'ni>.sioii 
of  fact,  they  are  obviously,  in  many  instances,  entitled  to  very 
little  weight,  and  in  some  cases  they  have  been  altogether 
rejected.  Thus,  it  has  been  held,  that  the  discharge  of  a  de- 
fendant by  a  Court  of  Quarter  Sessions,  under  an  insolvent 
act,  could  not  be  established  by  proof  of  an  acknowledgment 
of  the  discharge  by  the  plaintitf  himself;  for  the  discharge 
might  have  been  irregular  and  v^oid,  or  might  have  been  mis- 
taken by  the  plaintitf.  (4)  (a) 

*Vyith  respect  to  the  effect  to  be  attributed  to  admissions,  it  ^-^^rt  of 
is  to  be  observed,  that  proof  of  a   party  to    the   suit    having  conducive 
made  representations  of  facts,  for  particular  purposes,   and  on  admissions. 
particular  occasions,  may  preclude  him  from  relying  on  a  case  [  *378  ] 
which  is  inconsistent  with  those  representations;  thus  operat- 

Thompson    v.    Uavenport,    9  B.  4-    C.  2  Wils.  399,  it  was  said.    "  that  a    de- 

86,  fendant  saying  in  jest  or  in  a  loose  rainb- 

(3)  Melun  t).  Andrews.  1  M.  §-  M.  ling  talk,  that  he  had  lain  with  liie  piain- 
3.37.  2  C.  4-  P.  193.  Rex  t'.  Apple-  tiff 's  wife,  would  not  be  sufficient  alone 
b}',  3  St.  Ca.  33.  See  Finden  v.  West-  to  convict  him  in  the  action  ;  but  if  the 
lake,  1  -M.  &  M.  461.  defendant  had  seriously  and  solemnly  re- 

(4)  Scalt  r.  Clare,  3  Camp.  236.  cognised,  that  he  knew  the  woman  he 
Summerset  v.  Adamson,  1  Bing.  73,  to  had  lain  with  was  the  plaintiff's  wife, 
the  like  effect.  An  admission  by  a  de-  we  thmk  it  would  be  evidence  proper  to 
fendant,  on  being  arrested,  and  when  he  be  left  to  the  jury,  wiihout  proving  the 
was  ignorant  whether  he  was  bound  by  marriage."  See  Freeman's  case.  East's 
law  to  make  the  payment  or  not,  was  J'.  C.  470.  In  Norwood's  case.  East's 
held  admissible,  by  Lord  Kenyon,  Rouse  P.  C.  470,  confession.!  and  cohahitita- 
V.  Redwood,  1  Esp.  155.  It  seems  to  tion  were  admiited  to  prove  the  relaliori 
have  been  considered  in  Morris  v.  Miller,  of  husband  and  wife  in  a  case  of  peiit 
Burr.  2057,  see  Dr.  Smith  r.  Miller,  ci-  treason.  In  a  case  mentioned  in  2  Stark, 
ted  2  Wils.  399,  that  in  an  aciion  for  Ev.  654,  a  prisoner  was  convicted  of 
criminal  conversation,  an  acknowledg-  bigamy  on  proof  of  his  deliberate  admis- 
rnent  that  the  defendant  had  committed  sion  of  both  marriages,  in  the  presence 
adultery  with  the  wife  of  the  plaintiff  of  his  first  wife,  before  a  magistrate, 
was  not  sufficient,  wiihout  proof  of  a  However,  in  ^V'ilson  v.  Mitchell,  3  Camp, 
marriage  in  fact.     In  a  subsequent  case,  393,     Lord  Ellenborougli  held,    tha!   an 


[a]  In  assumpsit  for  goods  sold,  &c.  to  a  plea  of  the  defendant's  discharoo 
under  the  insolvent  act  in  New  York,  the  plaintiff  replied,  that  after  it  was 
obtained,  the  defendant  assented  to,  ratified,  renewed,  and  confirmed  the 
said  judfrrnent  and  demand  of  the  plaintiff:  Held,  that  the  action  was  pro- 
perly brought  on  the  original  promise.  The  court  say,  that  the  discharge 
does  not  make  the  original  contract  void,  but  suspends  every  remedy  upon  it; 
and  that  the  new  promi.se  merely  removes  the  bar  interposed  by  the  plea. 
And  there  is  no  distinction  whether  the  action  is  founded  on  a  judgment  or 
simple  contract ;  for  the  judgment  as  evidence  of  a  personal  contract  be- 
tween the  parties,  is  certainly  as  capable  of  being  set  up  and  renewed  by  a 
new  promise  as  any  ordinary  assumpsit,  llildreth  v.  Shillabee,  2  Hall,  2.1l  ; 
8  Mass  127.  See  7  J.  R.  87 ;  J4  id.  178  ;  3  Wend.  344 ;  4  id.  420 ;  4  Rawle 
4.'')2. 

An  acknowledgment  by  a  principal  a.s  to  the  legal  effect  of  a  bond — to 
wit— that  the  agency  continued  after  a  particular  time,  is  not  admissible.  2 
Pick.  223. 


336  Hearsay  Evidence.  [Ch.   IS. 

iiig  as  an  estoppel.  The  kind  of  representations  which  have 
been  held  to  have  this  eftect,  seems  for  the  most  part  to  be, 
where  on  the  faith  of  them  a  court  of  justice  has  been  indu- 
ced to  adopt  a  particular  course  of  ])roceeding,  or  where  other 
]!ersons  have  on  the  faith  of  the  representations  been  led  to 
alter  their  condition.     In  some  of  tlie  cases,  the  Courts  appear 

ficknowleflgment  by  a    plaintiff  that  she     of  coverture  without  evidence  of  an  ac- 
u'Ms  married    to    a    particular    individual     tual  marriage,  (a) 
was  not  suliicient  to  support    a    defence 

[a]  Except  in  prosecutions  for  bigamy  and  criminal  conversation,  a  marriage 
may  be  proved,  from  cohabitation,  reputation,  acknowledgment  of  the  par- 
lies, reception  in  the  family,  and  other  circumstances.  Fenton  v.  Reed,  4 
J.  R.  52. 

The  confession  of  the  defendant  charged  with  bigamy  before  a  magis- 
trate, was  hold  not  to  be  sufficient  proof  of  the  marriage.  People  i\  Ilum- 
])hrey,  7  J.  M.  314.  So,  in  a  prosecution  for  lascivious  cohabitation,  one 
being  married,  it  was  hold  necessary  to  prove  the  marriage  by  witnesses  who 
were  present  at  (he  ceremony,  or  by  the  record  of  the  person  authorized  to 
solen)nize  the  marriage.     1.5  Mass.  1G3. 

A  distinction  is  taken,  between  the  nature  of  the  proof  of  marriage,  requi- 
site in  ordinary  cases  of  a  civil  nature,— such  as  those  in  which  it  is  at- 
tempted to  subject  a  man  to  the  debts  of  his  wife, — and  in  criminal  prose- 
cutions, and  the  action  for  criminal  conversation,  which  is  "a  sort  of  crimi- 
nal action."     See  the  observations  of  Daggett,  J.  6  Conn.  44G. 

However,  in  Cayford's  case,  7  Greenl.  ,57,  which  was  an  indictment  for 
lascivious  and  lewd  coliabitation,  the  defendant's  confession  was  considered 
competent  proof  of  a  marriage  in  another  state,  to  be  submitted  to  the  jury. 
Mellon,  C.  J.  in  delivering  the  judgment  of  the  court,  observes: — "Nothing 
is  more  clear  than  that  proof  of  the  voluntary  confession  of  a  man  on  trial 
for  adultery  or  lascivious  cohabitation,  that  he  is  guilty  of  the  crime  charged, 
is  legal  evidence  ;  and,  in  the  absence  of  controlling  evidence,  is  abundant- 
ly sufficient ;  and  the  reason  why  his  confession  that  he  was  a  married  inan 
at  the  time  of  committing  the  offence  charged,  should  not  be  good  also,  is 
not  very  apparent.  In  several  books,  however,  there  seems  to  have  been 
sonie  distinction,  though  not  a  very  clear  one.  Neither  do  we  perceive  why, 
in  the  case  of  a  libel  ibr  divorce,  the  marriage  of  the  libellant  and  lihellee 
may  be  proved  by  a  regular  certificate  ;  and  yet  a  second  marriage  of  the 
libellee  with  the  person  with  whom  the  alleged  crime  of  adultery  was  com- 
mitted, must  be  proved  by  the  oath  of  some  person  present  when  the  mar- 
riage was  solemnized;  as  was  required  in  the  case  of  Ellis  v.  Ellis,  11  Mass. 
92."  In  Farray  v.  Hallacher,  8  S.  »fc  R.  159,  it  was  decided  in  a  case  of 
crim.  con.  that  the  declaration  of  the  defendant  that  he  knew  the  woman 
was  married  to  the  plaintiff,  and  that  with  this  knowledge  he  seduced  her, 
might  be  given  in  evidence  in  proof  of  the  marriage.  To  this  point  see 
also,  Rigg  V.  Curgenven,  2  VVils.  395.  In  Cayford's  case,  the  proof  of  the 
defendant's  confession  was  on  oath;  and  he  stated  that  he  was  married  in 
England.  Held,  that  the  court  were  bound  to  presume  that  he  was  legally 
married,  in  the  absence  of  all  proof  of  an  opposing  character;  especially 
after  a  cohabitation  of  ten  or  more  years,  and  the  birth  of  several  children. 
The  court  say — "  And  if  any  thing  more  is  necessary  to  show  the  legality 
of  the  marriage,  there  is  proof  of  his  having  received  property  inherited  by 
her,  which  he  could  not  have  obtained  unless  he  had  been  lawfully  married 
to  her.  Cases  of  foreign  marriages  stand  on  different  ground  from  domestic. 
The  latter  may  generally  be  proved  with  ease  by  record  evidence,  or  by  the 
oath  of  some  person  or  persons  who  were  present  at  the  solemnization  ;  they 
being  within  the  reach  of  the  court's  process;  not  so  in  case  of  marriages 
in  a  foreign  country,  or  even  in  another  state  in  the  Union." 


Sect,  l.j  Of  Admissions.  337 

to  have  considered,  that  the  general  rule  respecting  the  quali- 
ties of  estoppels  did  not  apply  to  representations  of  the  nature 
in  question.  In  others,  the  representations  have  been  treated, 
for  some  purposes  at  least,  as  a  branch  of  estoppels  properly 
so  called,  and  it  has  been  held  that,  as  being  estoppels,  they 
were  not  receivable  in  evidence  except  between  parties  and 
privies.  But  with  regard  to  the  rule  of  pleading  estoppels 
specially,  it  seems  that  this  rule  does  not  apply  to  the  repre- 
sentations in  question,  at  least  where  they  arise  by  matter  of 
evidence. (1)  {a) 

In  Heme  v.  Rogers,  (2)  the  rule  upon  the  subject  was  laid 

(1)  See  per  Lord  Tenterden,  in  Wat-  prol)ably  be  granted  toties  quolles. 
son  r.  Wace,  oB.  &  C.  155,     Per  IJay-  (2)  9  B.  &,    C.    5S6,    by    Bayley    J. 

ley,  J.,  in  Heine  u.  Rogers,    9  B.  &    C.  Tbe  case    determined    that    a   bankrupt 

5S6.     Acnording   lo  tbe    old    law    there  was  not  estopped  from    bringing   an    ac- 

inight  be  an  estoppel  by  matter  in  pais,  tion  against  his  assignees,  by  having  giv- 

Coin.  Dig'.   Estoppel.     There  does   not  en  up  his  lease    to   his    lessors,    on    the' 

appear  to  be  any  instance  of  the    repre-  ground  that  the  assignees  were    not   par- 

sentations    under    consideration    having  lies  or  privies  loiilie    transaction.     The 

been  specially  pleaded  as  estoppels.  But  doctrine  of  estoppels,    Co.    Litt.    352  a. 

in  case  of  jury  not  giving  such  an  efTect  Com.  D\g.  E-^toppel,  C,   was    referred 

to  the  representations.  Erne w  trial  would  to.     W^ith  respect    to    the    estoppels    in 

(a)  An  estoppel  does  not  apply  to  the  case  of  a  parol  contract.  7  Greenl. 
16'i.  In  replevin  for  a  horse,  defendant  pleaded  property  in  G. ;  the  plaintiff 
in  his  replication  stated  that  if  G.  had  any  property  in  the  horse,  he  derived 
his  title  troin  defendant  by  a  sale  to  him,  and  the  plaintiff  being-  ignorant  of 
the  sale  to  G.  purchased  the  horse  of  defendant  for  value  paid.  Upon  de- 
murrer, the  court  said — "  The  only  doubt  is  whether  the  principles  of  es- 
toppels are  applicable  in  the  present  case.  Estoppels  are  not  favored,  as 
their  object  and  tendency  is  to  exclude  the  truth  by  closing  the  door  of  in- 
vestigation. We  have  not  been  able  to  find  any  decisions  in  which  an  es- 
toppel has  been  applied  in  case  of  a  parol  contract.  On  the  facts  disclosed 
by  the  pleadings  the  defendant  passed  no  right  to  the  plaintiff  by  the  sale  of 
the  horse,  becaitse  he  had  none  to  convey,  id. 

In  the  case  of  Jones  v.  Sasser,  1  Dev.  &  B  .,  Mr.  Justice  Gaston  discusses 
the  dottrine  of  legal  and  equitable  estoppels.  He  considers,  that  no  man 
is  estopped  by  any"  oral  admission,  or  even  any  written  admission  not  of 
record  or  under  seal.  All  estoppels  whether  estoppels  at  common  law,  or 
equitable  estoppels;  are  yo«Jirfcc/ upon  the  great  principles  of  morality  and 
public  policy.  'I'heir  purpose  is  to  prevent  that  which  deals  in  duplicity  and 
inconsistency,  and  to  establish  some  evidence  as  so  conclusive  a  lest  of 
truth,  that  it  shall  not  be  gainsaid.  But  estoppels  are  not  to  be  favored  by 
construction; — they  are  not  favored ;  for  no  man  is  to  be  precluded  from 
showing  the  truth  of  his  claim  or  defence,  unless  it  be  forbidden  by  a  posi- 
tive rule  of  law.  A  person  who  has  title  to  a  slave,  will  not  be  estopped,  by 
reason  of  any  concealment  or  misrepresentation  of  that  title,  from  setting- 
it  up  against  one  who  claims  as  volunteer.  An  estoppel  cannot  be  set  up  to 
defeat  the  law. 

Estoppels  in  pais  cannot  be  j)lcaded,  but  arc  given  in  evidence  to  the 
court  and  jury,  and  may  operate  as  effectually  as  a  technical  esto[)pel  under 
tbe  direction  of  the  court.     ]!i  J.  li.  490;  8  Wend.  4^0. 

In  Gould  V.  Chace,  1(5  J.  R.  22(j,  the  defendant  having-  executed  a  promis- 
sory note,  afterwards  promised  the  assignee  of  the  note  to  pay  it :  Held, 
that  in  an  action  on  the  note  by  the  assignee,  in  the  name  of  the  payee,  lie 
could  not  set  off"  de.mands  which  he  had  against  the  nominal  plaiiitiif,  prior 
to  the  making  of  the  note. 

43 


338  Hearsay  Evidence.  [Chap.   18. 

[  *379  ]  *down  in  these  terms: — "The  express  admissions  of  a  party 
to  the  suit,  or  admissions  implied  from  his  conduct,  are  evi- 
dence, and  strong  evidence  against  him  ;  but  he  is  at  liberty 
to  prove,  that  such  admissions  were  mistaken  or  were  untrue, 
and  he  is  not  estopped  or  conchided  by  them,  unless  another 
person  has  been  induced  by  them  to  alter  his  condition ;  in 
such  a  case  a  party  is  estopped  from  disputing  their  truth, 
with  respect  to  that  person  and  those  claiming  under  him  ; 
but  as  to  third  persons  he  is  not  bound."  (a) 

In  an  action  of  trespass,  commenced  in  order  to  try  the  va- 
lidity of  a  commission  of  bankruptcy  issued  against  the  plain- 
tiff, where  it  was  proved  by  the  defendants,  that  the  commis- 
sion issued  against  the  plaintiff,  in  custody  at  the  suit  of  the 
petitioning  creditor,  Avho  was  one  of  the  defendants,  and  that 
the  plaintiff  had  afterwards  applied  to  the  Court  of  King's 
Bench  under  the  49  Geo.  3,  c.  121,  s.  14,  on  the  ground  that 
he  had  become  bankrupt,  and  that  his  detaining  creditor  had 
proved  under  the  commission,  it  was  held,  that  the  plaintiff 
could  not  dispute  the  validity  of  the  commission.  Lord  Ten- 
[  *380  ]  terden  *said,  that  "the  estoppel  arose  by  matter  of  evidence, 
and  the  question  was,  whether  a  party  having  availed  himself 
of  the  commission  for  one  purpose,  can  afterwards  be  allowed 
to  assert  to  the  same  Judges,  before  whom  he  took  the  benefit 
of  the  commission,  that  the  commission  was  invalid.  Lord 
EUenborough  (1)  gave  his  opinion  to  the  contrary,  and  that 
has  never  since  been  questioned."  (2) 

matters  of  banliruptcy,  in  Clarke  ?•.  though  evidence  against  the  person  mak- 
Ciarke,  6  Esp.  61,  a  bankrupt  was  es-  ing  it,  and  those  claiming  under  him,  is 
topped  by  acting  in  the  sale  of  his  effects,  not  conclusive  evidence,  except  as  to  the 
In  Lake  v.  Howe,  6  Esp.  20,  a  bank-  person  who  may  have  been  induced  by 
rupt  was  estopped  from  questioning  the  it  to  alter  his  condition.  In  that  case 
title  of  persons,  whom  he,  by  his  con-  parol  evidence  was  admitted,  to  show 
duct,  had  procured  to  become  assignees,  why  a  receipt,  indorsed  on  a  bill  or  note. 
See  Flower  v.  Herbert,  2  Ves.  326.  that  was  so  indorsed,  and  by  whom  the  nion- 
a  surrender  by  a  bankrupt  to  commiss-  ey  therein  mentioned  was  paid.  The 
ioners  is  no  estoppel.  Rankin  v.  Hor-  nonsuit,  which  was  set  aside  by  the 
ner,  16  East,  191,  proof  of  debt  not  an  Court,  proceeds  on  the  ground  that  the 
admission.  It  had  been  before  consider-  receipt  was  conclusive  evidence,  that  the 
ed  an  estoppel,  per  Lord  Mansfield,  VVal-  bill  had  been  paid  ^y  the  acceptor, 
ker  V.  Burnell,  cited  3 'r.  11.  322.  The  (1)  In  Goldie  v.  Gunston,  4  Camp- 
admission  in  Mallby  v.   Christie,  1    Esp.  381. 

340,  cited  16  East,  193,  and  sujira,  p.  (2)  Watson  v.  Wace,  5  B.  &  C  153, 
364,  was  treated  by  Lord  Kenyon  as  the  plaintiff  was  nonsuited.  It  was  con- 
conclusive.  Further  on  admissions  in  tended,  on  the  part  of  the  plaintiff",  that 
bankruptcy,  s2/pj^a,  371,  n  In  Graves  the  estoppel  was  not  mutual,  and  had 
V.  Key,  3  B.  &  Ad.  318,  the  Court  lay  not  been  pleaded,  and  was  inferential 
down  a  general  rule,    that  an    admission  and    not    direct.     But    Lord   Tenterden 

(a)  See  post  p.  597  n.  where  it  is  settled,  that  a  mortgajree  of  a  vessel 
may  declare  himself  the  legal  owner,  for  the  purpose  of  the  registry  acts, 
without  in  any  manner  altering  the  existing  relations  between  him  and  the 
mortgagor.  1  Mason,  318.  The  object  of  the  registry  being  merely  to 
show  her  national  character,  and  is  op«n  to  explanation,  in  the  same  manner 
m  the  bill  of  sale.    2  Hall,  1 ;  18  J.  R.  169.    See  also  8  Pick.  86. 


Sect.   1.] 


Of  Admissions. 


339 


A  petitioning  creditor,  who  had  sued  out  a  commission  of 
bankruptcy,  upon  an  affidavit,  stating  the  fact  of  bank- 
ruptcy, has  been  hold  to  be  afterwards  estopped  from 
quesiioning  that  fact.  And  it  was  said  by  the  Court,  that 
those  who  had  treated  a  parly  as  a  bankrupt,  should  not  af- 
terwards be  allowed  to  gainsay  their  own  assertions.  (3) 

In  an  action  for  tolls,  where  a  delendant  had  accounted 
with  the  plaintiff,  and  received  credit  from  him  as  collector  of 
ceriam  turnpike  tolls,  but  who  had  not  been  legally  appointed, 
it  Avas  held  that,  after  such  an  admission  of  the  plaintiff  being 
a  person  to  be  accounted  Avith  for  the  tolls,  the  defendant 
should  not  be  permitted  to  dispute  his  title  to  recover  the  bal- 
ance of  the  account.  (4)  (a) 

*A  person  who  had  described  himself  as  a  physician   can-  [ 
not  afterwards  maintain  an  action  for  fees.  (1)      A  vendee   of 
goods,  who  has  given  to  the  vendor  a  bill  of  exchange  in  pay- 
ment, cannot  afterwards  dispute   the    reasonableness   of  the 
charge.    (2)    (6)      And  if    a    man  hold    out    a   woman   as 


said,  that  tliis  was  not  the  case  of  an 
estoppel,  strictly  and  technically  so  call- 
ed, and  that  it  arose  by  matter  of  evi- 
dence. In  Hearne  v.  Rogers,  9  B.  4-  C. 
577.  Supra,  p.  387,  where  represen- 
tations of  the  nature  in  question  were 
considered  as  being  governed  by  the 
strict  doctrine  of  estoppels,  it  was  sug- 
gested that  it  was  a  fact  material  to  the 
decision  of  Watson  v.  Wace,  that  one 
of  the  defendants  was  the  person  from 
whose  suit  the  plaintiff  had  been  dis- 
charged. See  Goldie  r.  Gunston,  4 
Camp.  3S1.  Mercer  v.  Wise,  2  Esp. 
219. 

(3)  Ledbetter  v.  Salt,  4  Bing.  62G. 
The  action  was  brought  by  the  assignee 
under  the  second  commission.  There 
does  not  appear  to  have  been  any  mutu- 
ality in  the  estoppel,  nor  was  it  pleaded. 
And  see  Groves  v.  Western  Canal  Com- 
pany, 5  M.  ^  S.  76.  llarmar  v.  Davis, 
7  Taunt.  577,  estoppels  of  petitioning 
creditors.     In    Dovvden    v.     iowle,     4 


Camp.  78,  an  admission  of  a  petitioning 
creditor,  who  was  also  assignee  of  a 
bankrupt,  was  used  against  himself  and 
his  co-assignees,  though  it  was  contrary 
to  his  affidavit. 

(4)  Peacock  v.  Harris,  10  East,  106, 
the  action  was  by  the  administratrix  of 
the  collector.  The  case  was  compared 
by  Lord  Ellenborough  to  that  a  of  tenant 
disputing  his  landlord's  title.  The  col- 
lector having  sent  his  bill  to  the  defend- 
ant, the  defendant  sent  back  5/.,  with  a 
message  that  the  remainder  should  be 
paid  it!  the  next  week.  In  Dickenson  v. 
Coward,  1  B.  4-  A.  679,  the  Court  ap- 
pear to  have  considered,  that  accounting 
and  paying  to  a  person  in  a  particular 
capacity  was  only  prima  facie  evidence 
of  his  title, 

(1)  Chorley  v.  Bolcott,  4  T.  R.  317. 
Dip-combe  ).  Holmes,  2  Camp.  441. 

(2)  Nash  V.  Turner,  1  Esp.  217.  Sol- 
oinon  r.  Turner,  1  St.  51.  Knox  v.  Wal- 
loy,  1  Esp.  159. 


•=381] 


(a)  See  14  J.  R.  338  ;  1  Hall  191,  where  it,  was  held,  that  where  the  defend- 
ant undertakes  to  enter  into  a  contract  with  the  plaintiff  in  tlioir  corporate 
name,  he  thereby  admits  them  to  be  duly  constituted  a  body  politic  and  cor- 
porate under  such  nBine.  A  later  decision,  however,  seems  to  consider  this 
doctrine  in  reference  to  a  corporation  as  unsound.  See  8  Wend.  480 ;  and 
see  post.  p.  ?>'J~).  n. 

Where  tiie  plaintiffs  had  acted  as  trustees  of  a  religious  corporation  ;  and 
hroui^ht  a  suit  colon',  officii,  the  defendant  cannot  sustain  an  objection  to  tiioir 
ritfjit  of  recovery,  on  tiio  ground  that  they  ;ue  not  trustees,  witluml  showiufj 
that  proceedings  have  been  instituted  aguiiist  them  by  the  <rovennncnt,  and 
carried  on  to  a  judj^ment  of  ouster,     (i  Gowon,  23. 

(//)  If  one  man  is  leijally  answerable  to  two  or  more  persons  jointly,  if  lie 
will  settle  and  adjust  the  controversy  with  either  of  them,  so  that  lie  has  no 
longer  an  interest  in  the  dispute,  this  is  a  severance  of  the  cause  of  actio:* 


)40  Hearsay  Evidence.  [Ch.   18. 

his  wife,  he  cannot  set  up  as  a  defence  to  an  action 
for  necessaries  that  she  was  not  his  wife.  (3)  In  Uke 
manner  a  person  may  sometimes  be  estopped  from  taking  ad- 
vantage of  a  misnomer  in  process.  (4)  (a) 

(3)  Robinson  ?'.  Nahon,  1  Camp.  245.  called  tlie  woman  his  wife  in  his  ad- 
Watson  u.  Threlkeld,  2  Esp.  637.  See  dress  to  the  jury.  In  Mace  t).  Cadell, 
Munroe  v.  De  Chemant,  4  Camp.  215.  Cowp,  233,  cited  by  Gazelee,  .1.,  4  IJing. 
That  the  estoppel  ceases  on  separation.  613,  altera  woman  had  been  entered 
By  Best,  C.  IS.,  in  Balthews  r.  (iaiindo,  in  excise  books  as  "  married"  she  was 
4  Bing  614.  But  a  person  iioldiog  out  not  allowed  to  claim  goods  as  her  sole 
a  woman  as  his  wife  may  afterwards  call  property  against  assignees  of  the  person 
iier  as  a  wilness.  Batthews  i.  Galendo,  ibr  whose  wife  she  passed. 
4  Bing,  614,  overruling  Lord  Kenyon's  (4)  Reeves  v.  Slater,  7  B.  ^  C.  487. 
decision  in  Adey's  case.  Leach,  245,  Gould  v.  Barnes,  3  Taunt.  488.  Price 
though  Park,  .1,,  appears  to  have  consid-  v.  Har.vood,  3  Camp.  108.  Morgan  v. 
ed  the  decisions  as  reconciieable,  in  as  Bridges,  2  irt  314. 
much  as  in  Adey's  case,  the  prisoner  had 

as  to  any  or  all  the  parties.  Baker  t;.  Jewell,  6  Mass.  440 ;  9  id.  235.  In 
Holland  v.  Weld,  4  Greenl.  255,  defendant  made  a  contract  with  plaintiff 
and  three  others  ;  afterwards,  he  obtained  a  release  from  one  of  tiie  parties 
under  his  hand  and  seal.  Held,  that  the  release  was  available  to  the  de- 
fendant against  the  one  released  only — the  court  sayinj^ — "He  must  now 
permit  the  plaintiff  and  the  other  two  promisees  to  consider  the  contract  as 
severed,  and  assert  their  claims  against  him  accordingly." 

(a)  Where  the  plaintiff  was  led  into  the  mistake  bytJie  fault  of  the  defend- 
ants (a  banking  corporation)  in  issuing  tiieir  notes  by  a  wrong  name,  which 
the  plaintifl  supposed  to  be  their  true  name,  and  sued  them  by  it.  Held, 
that  he  might  amend.  5  Mass.  97.  By  statute,  writs  are  required  to  be  in- 
dorsed by  the  plaintiff,  his  agent  or  attoritey  ;  and  the  writ  was  endorsed 
"Seth  Briggs"  only.  Held,  that  he  was  estopped  from  denying  that  he 
endorsed  ag  the  plaintiff's  agent.     5  id.  97. 

If  a  party  knowing  of  any  objection  to  an  arbitrator  before  the  hearing, 
take  no  exception,  the  objection  must  be  taken  to  be  waived.    10  Pick.  275. 

If  one  would  avoid  a  sale  for  fraud  practiced  by  the  other  party  to  the  con- 
tract, he  must  return  all  the  property  that  he  received  on  executing  the  con- 
tract; for  the  party  defrauded  had  his  option  to  consider  the  fraudulent  con- 
tract void,  or  in  force.  Il  he  commences  an  action,  to  recover  damages  for  the 
fraud,  he  will  be  considered  as  making  his  election  to  consider  the  contract 
as  subsisting.  And  if  the  fraudulent  contract  is  subsisting,  the  property 
passed  bv  the  sale  or  exchange  is  not  annulled.  Kimball  v.  Cunningham,  4 
Mass.  502. 

If  a  creditor  levy  his  execution  on  personal  property  and  receive  the 
money  arising  from  the  sale,  it  will  be  an  actual  satisfaction  of  his  execu- 
tion, and  so  long  as  he  holds  the  money  as  his  own,  he  canpot  allege  that 
any  thing  is  legally  or  equitably  due  to  him.  Thu.s,  in  Batchelder  v.  Wa- 
son,  8  N.  H.  R.  121,  which  was  debt  on  a  judgment;  and  it  appearing  that 
the  plaintiff  had  not  refunded  the  money  to  the  owner,  or  the  officer,  Held, 
that  he  was  not  entitled  to  recover,  although  the  goods  sold  to  satisfy  the 
execution  were  not  the  property  of  the  deJDtor. 

The  vendee  cannot  call  in  question  the  title  of  the  vendor,  until  he  has 
been  charged  at  the  suit  of  another  person,  who  has  afler  contestation  shown 
a  better  title.  Vibbard  v.  Johnson,  19  J.  R.  77.  The  defendant  cannot  by 
a  voluntary  payment  to  the  supposed  owner  draw  tlie  plaintiff's  title  in  ques- 
tion. 

However,  where  the  sheriff  is  sued  for  neglect  of  duty  in  not  collecting 
an  execution,  Held,  that  the  defendant  may  prove  under  the  general  issue 
that  he  was  guilty  of  no  neglect,  and  that  the  plaintiff  has  sustained  no  in- 
jury by  his  non-feasance,  and  proof  that  the  personal  property  attached  upon 


Sect.  1.]  Of  Admissions.  341 

Where  a  person  has  held  himself  out  as  a  partner  to  ,a  par- 
ticular individual,  or  under  such  circumstances  of  publicity, 
that  it  may  be  presumed  that  the  individual  acted  on  the  faith 
of  his  being  a  partner,  he  will  be  precluded  from  disputing  his 
liability  as  a  partner.  (5)  Thus  where  a  person  allows  his 
name  to  remain  in  a  firm,  either  exposed  to  the  pubhc  over  a 
shop  door,  or  to  be  used  in  printed  invoices  or  bills  of  parcels, 
or  to  be  published  in  advertisements,  he  is  estopped  from  dis- 
puting his  liability  as  a  partner.  (6)  (a) 

On  the  same  principle  is  founded  the  rule,  that  a  tenant  can- 
not ^dispute  his  landlord's  title.     Where  a  tenancy  is  created  [  *3S2  ] 
by  a  lease  by  deed  indented,  the  tenant  may  be  estopped  from 
saying  any  thing  repugnant  to  it,  according  to  the  strict    law 
of  estoppels  as  applicable  to  deeds.  (1)  {h)      Where  the  lease 

(5)  PerPnrke,  J.,  Dickenson  t'.  Val-  Loxley,  5  T.  R.  4.  llrooksby  r.  \Vatts, 
py,  10  B.  4"  C.140.  PerLord  Kenyon,  6  Taunt.  333.  Frogmoilon  u.  Scolt,  2 
De  Bertram  v.  Smith,  1  Esp.  29.  Kell  East,  467,  illegal  possession.  Hodson 
V.  Rainby,  10  B,  Sj-  C  21.  Genden  v.  v.  Sharpe,  10  East,  350,  informal  lease. 
Robson,  2  Camp.  302.  A  lease  by  deed  poll   is  not  an  estoppel. 

(6)  Per  Tindal,  C.  J.,  Fox  v.  Clifton,  Co.  Litt.  369  b.  Bac.  Ah.  Leases,  i). 
6  Bing.  794.  The  knowledge  and  as-  A  lease  from  a /ewie  cocerf,  infant,  or 
sent  of  the  partner  is  essential  in  such  from  the  crown,  is  not  an  estoppel,  for 
cases,  ib.  Mewsome  v.  Coles,  2  Camp,  want  of  mutuality.  Bac- Ab.  Leases, 
617.  O.      Co.     Liu.     352.     Cro.    Eliz.     36. 

(I)  Co.  Litt.  47  b.     Strowd   v.   Wil-  Say.  13     Morgan    v.  Ambrose,    Peake,, 

lis,  Cro.  Eliz.  362.     Brudenell  v.    Rob-  Ev.  242.     B.  N.  P.  139.     2  Yes.    Jun. 

erts,  2  Wils.  143.     Sylvan  n.  Stradling,  696.      llVes.  344.     Palmer?).    Ekins, 

z'6.  208.      Wilkins  t>.  VVingate,  6  T.   R.  Lord  Raym.  1552.     Atkinson  «.  Pr«rre- 

62.     Parkeru.  Planning,  7  T.    R.    537.  point,  Esp.  Dig.    30.     Phipps    v.    Scul- 

Blake  v.  Foster,  8  T.  R.   487,    that    the  tliorpe,  1  B.  S,-  A.  50.     Parry  v.  House, 

lessor  had  an  equitable  estate.     Cook  r.  Holt.  C.  489. 

the  original  writ  was  not  the  property  of  the  debtor,  was  frood  evidence. 
Fuller  V.  Holden,  4  Mass.  498.  The  court  said  : — "Tf  it  had  been  ur^f^ed  for 
the  plaintiff,  tiiat  he  has  not  alleged  the  property  of  the  cows  to  be  in  Porter 
(debtor),  and  therefore  the  property  of  them  was  not  in  issue,  it  might  have 
been  answered,  that  the  plaintiff  lias  suffered  no  damage  whatever  by  the 
defendant's  conduct,  if  the  cows  were  not  the  property  of  Porter,  and  that 
the  evidence  could  not  injure  him." 

(a)  In  the  case  of  De  Bertram  v.  Smith,  1  Esp.  R.  29,  Lord  Kenyon  said, 
"  that  though  in  point  of  fact,  parties  are  not  partners  in  trade,  yet  if  one  so 
represents  himself,  and  by  thnt  means  gets  credit  for  goods  for  tiie  otiier, 
that  botli  shall  be  liable."  But  tliis  principle  is  denied  in  Mitolieli  v.  Roul- 
stone,  et  al,  2  Ilall,  ;i")(),  7  by  Oakley,  J.,  who  says: — "  If  the  party  repre- 
senting himself  to  be  a  partner,  does  so  witli  the  knowledge  of  the  other, 
or  if  the  party  obtaining  the  goods,  knows  tliat  they  are  delivered  on  the 
faith  of  a  representation  by  another,  tiiat  lie  is  a  partner,  tlie  law  may  well 
raise  a  joltiI  assumpsit  against  botli,  tliough  no  partnership  in  fact  exists. 
But  I  apprehend,  that  n  joint  assumpsit  against  two  defendants,  can  never  bo 
supported  without  evidence,  express  or  implied,  that  both  liave  assented  to 
the  contract." 

See  Whitney  v.  Sterling,  14  J.  R.  215,  wliere  it  was  held,  that  it  was  com- 
petent to  prove  a  partnership  by  general  reputation.  But  see  Bernard  v. 
Torrance,  r,  G.  &.  J.  383. 

{b)  See  Carver  v.  J<ackson,  4  Pet.  R.  1,  where  it  was  held,  that  the  recital 
of  a  deed  of  release  in  the  deed  of  marriage  settlement,  was  conclusive 
evidence  upon  all  persons  claiming  under  the  parties  in  privity  of  estate  ; 


342  Hearsay  Evidence.  [Ch.   18. 

is  not  by  deed,  the  tenant  or  any  person  claiming  under  him 
is  precluded  from  objecting  to  the  title  of  a  landlord  from 
whom  he  has  received  possession,  or  to  the  title  of  any 
party  claiming  imder  his  landlord.  (2)  (a)    Bnt  a  mere  attorn- 

(2)  Doe  (].  Mantoni).  Austin,  9  Bing.  v.  Searall,  8  B.  &  C.  471,  it  was  held, 
45.  Doe  ;.  Smythe,  4  M.  I<f  S.  347.  that  the  title  of  a  person,  to  whom  the 
Doe  d.  Eii.'tovv  v.  I'egwe,  1  T.  R.  760,  tenant  liad  attorned,  hut  from  whom  he 
n.  Parry  v.  House,  where  the  title  was  liad  not  received  posses-iion,  might  he 
Ibuiided  on  fraud.  Holt,  4.S[).  Cooke  disputed.  And  Mr.  Justice  Bayley  .said, 
V.  Loxlev,  5  'r.  R.  4.  i'hipps  r,  Scul-  that  the  distinction  was  helween  the  case 
ihorpe,  1  B.  &  A.  50.  Hull  v.  Vaughn,  where  a  person  has  actually  received 
«)  Pr.  157.  I'leniming  r.  (iooding,  10  possession  from  another,  who  has  no  ti- 
Bing.  549.  Rennie  r.  Rohinson,  1  tie,  and  the  case  where  he  has  merely 
Bing.  147.  In  liUe  manner  a  copyhold-  attorned  by  mistake  to  one  who  has  no 
«r  wi)o  has  been  admitted  and  done  feal-  title  ;  in  the  former  case,  the  tenant  can- 
ty cannot  dispute  the    title    of   the    lord,  not,  unless  under    very    special    circum- 

Doe  d    Nepean  ?■.  Budden,  3  B.  &.  A.  stances,  dispute  the  title  ;  in    the    latter 

626.      With  respect  to  the  estoppel  on  a  he  may,  and  {\n'   this    position    he    cited 

mortgagor  froen  disputing  the  title  of  the  Rogers  /.  Pitcher,  6  Taunt.  202.   Giave- 

iiiortgagee,  see  cases  cited  in  Wright  r.  nor  v.  Woodhouse,  1  Bing.  38. 
Bucknell,  3  R.  !f  Ad.  278.     In  Cornish 

as  the  defendant  in  ejectment  in  that  case  did  claim  ;  for  the  recital  consti- 
tuted a  part  of  the  title,  and  established  a  possession  under  the  lease  neces- 
sary to  2:ive  the  release  its  intended  operation.  It  works  upon  the  interest 
of  the  land,  a^rainst  all  persons  in  privity  under  the  releasors. 

(a)  See  ICames,  444:  2  id.  215;  3  J.  11.498;  7  id.  186;  10  id.  538;  12  id. 
182  ;  .3  Conn.  R.  35.  If  a  tenant  admits  when  the  declaration  is  served  in 
an  ejectment  suit,  that  there  was  not  sufficient  property  on  the  premises 
liable  to  distress,  to  countervail  the  arrears  of  rent,  he  is  estopped  thereby, 
from  controverting  the  fact  upon  the  trial.     9  Wend.  147. 

Where  both  parties  claimed  title  from  M.,  the  defendant,  through  B., 
whose  tenant  he  was,  and  with  whom  he  entered  into  a  contract  to  purchase, 
when  B.  took  a  deed  from  M.,  Held,  that  defendant  was  estopped  from  de- 
nying that  the  title  was  in  M.  when  he  conveyed  to  B.     12  VVend.  57. 

It  has  been  held,  that  a  stranger  cannot  sue  for  use  and  occupation  for 
the  purpose  of  trying  the  title.  14  Mass.  06.  The  action  is  founded  on  a 
contract  express  or  implied  ;  and  not  depending  upon  the  validity  of  the 
plaintiff's  title.  See  the  case  of  Henwood  v.  Cheeseman,  3S.  &R.  500; 
Allen  V.  Thayer,  17  Mass.  299  ;  2  G.  &  J.  326;  2  Greenl.  337. 

Tenant  in  an  action  of  dower  died  after  judg-ment.  Held,  that  the  plain- 
tiff was  not  entitled  to  enter  under  a  writ  of  seizin  sued  out  subsequent  to 
the  death,  so  as  to  maintain  an  action  for  use  and  occi:pation.  Hildreth  v. 
Thompson,  IG  Mass.  191.  See  also  the  case  of  Wyman  v.  Hook,  2  Greenl. 
337,  where  it  was  held,  that  use  and  occupation  will  not  lie  against  a  judg- 
ment debtor  who  continues  in  possession  contesting  the  legality  of  the  pro- 
ceedings. 

Defendant  in  a  contract  for  the  purchase  of  a  farm,  enters  and  occupies 
for  a  number  of  years  ;  and  also  underletting  and  receiving  rents;  Held, 
that  the  action  is  not  maintainable,  although  the  defendant  was  the  sole 
cause  why  the  contract  was  not  carried  into  effect.  3  Conn.  R.  203.  See 
also  the  cases  Little  v.  Pearson,  7  Pick.  301 ;  Smith  v.  Smith,  6  J.  R.  46  to 
the  same  point. 

Takin:;  the  key  and  entering  into  the  premises  without  a  continued  ac- 
tual possession,  is  sufficientto  enable  the  plaintiff  to  recover.  And  so,  where 
there  is  an  agreement  to  demise  for  five  years^  and  leases  to  be  executed, 
under  which  the  party  enters  and  subsequently  refuses  to  accept  a  lease,  the 
owner  may  maintain  assumpsit  for  the  use  and  occupation.  Little  v.  Martin, 
3  Wend.  219.  If  the  tenant  has  etitered  and  occupied,  he  cannot  question 
the  title  of  his  landlord.    5  Pick.  124. 


Sect.   1.]  Of  Admissions,  343' 

ment  without  payment  of  rent,  amounting  to  a  bare  assent, 
does  not  create  an  estoppel.  (3)  And  payment  of  rent  to 
another  party  than  him  under  whom  the  tenant  came  original- 
ly into  possession,  may  be  shewn  to  have  been  done  under  a 
misrepresentation,  or  under  other  circumstances  not  entitling 
the  party  to  receive  it.  (4)  The  *tenant  is  not  precluded  from  [  *383  ] 
shewing,  that  his  landlord's  title  is  determined  (1)  (a)  either 
by  act  of  law,  or  his  own  act,  or  by  efflux  of  time. 

(3)  Shep.  Touch.  254.  Cornish  v.  foi-di'.  Fletcher,  4  T.  R.  511.  Tnylor 
Searall,  8  13.  &  C.  471.  Gravenor  v.  ?•.  Zamira,  (5 'raiiiit.  524.  D)er  r.  Dovv- 
Woodhouse,  1  Bing.  38.  By  Huller,  J.,  ley,  2  Bing.  94.  Moss  v.  Galliiiiore, 
ill  Williams  v.  Biirlholeinew,  1  B.  &  P.  Doug.  279.  Alchorne  v.  Goinnie,  2 
326.  Giiig-  54.      With  respect  to  p.iyfiieiils  of 

(4)  Rogers  v.  Pitcher,  6  Taunt.  202.  rent  to  mortgagees  by  tenants  of  mortga- 
W  illiams  y.  Barlholeniew,  1  B.  &,  V.  gors.  Alcliorne  tt.  Gomme,  2  Bing  54. 
326  Gregory  v.  Doidge,  3  Bing.  474.  i'ope  r.  Biggi^  9  B.  &  C  245.  Keecli 
Gravenor  v.  W'oodhouse,  1  Bing.  38.  r.  UdW,  Doug.  21.     It  would  seem  that 

(1)   England  d.  t'yburn  v.  Slade,  4  T.  the     expiration    of  the    landlord'.s    title, 

R.  682.     Doe  d.    Marriott  v.    Edwards,  had  been  considered  in  some  cases  as  not 

5  B.  &  Ad    1065.     Doe  d.  Jacl<eon    v.  l)eing  a  defence    against    the    peison    by 

Ramsbottom,  3  M.  &,  S.   516.     Doe   v.  whom  the  tenant  had  been  originally  let 

W'atson,  2  St.  230.      Blake  v.  Foster,  8  into  p  ssession,  unless  the  title  iiad  been 

T.  11.    487.     Brudenell    v.    Roberts,    2  formally    renounced  and    fresii    holding 

^\  ils.  143.      Hill   V.  Saunders,    2    Bing  commenced  under  another  person.     Ball.-i 

113.     4  Li.  &.  C.  529.     As  to  the  effect  v.  Westwood,  2  Camp.  11.    And  see  by 

of  payment  of  rent  sul)sequently    to    the  Gibbs,  C.  J.,    in    Rogers  r.    Pitcher,    6 

expiration  of  the  landlord's    title.     Fen-  Taunt.  209.     But  see    Fenner   v.    Dup- 

ner  v.  Duplock,  2  Bing.    10.     The    ten-  lock,  2  Bing.  10,  and  Weave  v.  Moss,    1 

ant   may   show    payment    of  rent   to    a  Bing.  360. 
person    having   paramount    title.     Saps- 


(a)  Hallett  v.  Wylie,  3  J.  R.  44  ;  Fowler  v.  Bott,  0  Mass.  (5.3.  Assumpsit 
upon  an  express  contract  to  pay  rent  for  a  house,  the  defence  was,  that 
"  a  large  multitude  of  armed  men,  with  high  and  irresistible  force,  seized 
upon  and  destroyed  the  demised  premises  and  evicted  the  lessee — Held,  that 
as  the  destruction  of  the  demised  premises  by  fire  will  not  excuse  the  tenant 
frotii  the  payment  of  rent  on  an  express  covenant,  so  here,  although  it  is  a 
verbal,  and  not  a  M'ritten  contract,  on  which  the  claim  is  founded,  yet  it  is 
such  a  lease  as  the  law  recognizes ;  and  the  promise  to  pay  the  rent  re- 
served, is  just  as  valid  as  if  it  was  a  covenant  under  seal:  and  that  the 
plaintiff  was  entitled  to  recover  up')n  the  first  count  in  his  declaration,  wliicii 
charges  an  express  contract  to  pay  rent.     Wagner  v.  White,  4  IJ.  &-  J.  5(J4. 

Under  a  plea  of  no  rent  in  arrear,  defendant  may  show  that  the  liousc  was 
rendered  uninhabitable  by  a  storm.  Ripley  v.  Wightman.  4  M'Cord,  447. 
Other  cases,  however,  are  difierent ;  and  the  weight  of  authority  is  other- 
wise. See  the  case  of  Gates  v.  Green,  4  Paige's  Cli.  R.  '^m.  Unless  tho 
tenant  has  protected  himself  by  a  stipulation  in  the  lease,  or  the  landlord 
has  covenanted  to  rebuild,  id.   See  li  K.  C.  4(17. 

A  tenant  of  a  mortgagor  in  possession,  after  the  mortgage  has  becotne 
forfeited,  during  the  continuance  of  tho  lease,  may  atlorn  to,  and  take  a 
lease  froin  tho  mortgagee  ;  and  such  an  attornment  is  a  good  defence  in  an 
action  for  use  and  occupation.     20  J.  R.  .ll. 

In  Binney  v.  Chapman,  5  Pick.  \2l,  where  it  was  held,  that  the  tenant 
might  siiow,  that  the  landlord  after  tiie  demise  conveyed  the  premises  by  an 
absolute  deed.  And  it  has  been  hold,  tliat  the  tenant  has  a  right  to  purchaso 
any  title  he  pleases,  hut  he  is  bound  to  give  up  tiie  promisf's  and  bring  his 
action  to  try  title;  Love  v.  Dennis,  I  Harp.  R.  70;  Richardson  v.  Brough- 
ton,  2  N.  &,  M'Cord,  417 ;  Jackson  v.  Steward,  G  .1.  11.  Ml ;  2  Binn.  47J. 

In  the  relation  of  landlord  and  tenant,  fidelity  is  rcrjuircd  on  the  part  of 


344  Hearsay  Evidence.  [Ch.   18. 

Upon  the  same  })rhiciple,  it  seems,  a  party  accepting  anego- 
ciable  instrument  is  precluded  from  disputing  the  handwriting 
of  the  drawer  :  and  ahhough  he  mav  in  general  dispute  the 
handwriting  of  the  indorser,  yet  where  the  drawer  is  a  ficti- 
tious person,  the  acceptor  is  bound  to  pay  to  the  signatm'e  of 
the  same  person  that  signed  for  the  drawer.  (2) 

(2)  Cooper  u.  Meyer,  10  B.  &'C.  46S.  13.  And  draw's  ability,  Taylor  u.  Cro- 
Ho'hinson  v.  Yarrow,  7  Taunt.  455.  ker,  4  Esp.  187,  cited  2  B.  4-  C.  299, 
Williinson  «.  LutwidgH,  1  Sir.  648.  admits  competency  of  Drawer  to  in- 
Smitli  V.  Chester,  1  T.  R.  654.  JenyS  dor.se,  Drayton  v.  Dale,  2  B.  &.  C.  299. 
«.  Fawier,  2  iStr.  946.  Leacli  v.  Bucha-  Concerninj;  the  admission  of  indorse- 
iian,  4  Esp.  226.  Price  v.  Neale,  3  nients  by  acceptor  or  indorser,  see  fur- 
iiurr.  1354.  Smith  «.  .Mercer,  6  Taunt,  iher  Ilankey  «.  \Viison,  Sayer  223. 
76,  though  the  hill  be  forged.  Tiiat  the  Bosanquet  w.  Anderson,  6  Esp.  43. — 
acceptance  admits  auihoiity  of  agent  Sedford  v.  Chambers,  1  St.  326.  Hem- 
purporting  to  draw  as  such.  I'orthouse  niings  v.  Robinson,  Barnes,  436.  Mac- 
V.  Parker,  I  Camp.  82.  Robinson  v.  pherson  u.  Thoytes,  Peake  20.  Jones 
Yarrow,  7  Taunt.  455.  That  it  admits  v.  Radford,  1  Camp.  83.  Carrick  v. 
style  Q^  firm,  Bass  v   Clive,  4  M.  &    S.  Vicary,  Doug.  630.     Duncan  v.    Scott, 

the  tenant.  Any  act  of  desertion,  ot  which  is  inconsistent  with  an  estiite  at 
will,  done  by  the  tenant,  will  determine  the  estate.  G  Greenl.  12.  Here 
the  tenant  was  the  judgnient  debtor,  pointed  out  the  land,  which  he  held  at 
will,  to  be  levied  on  as  his  property,  and  otherwise  assisted  at  the  levy: 
Held,  that  the  tenancy  at  will  was  thereby  determined. 

The  o'wner  of  a  farm  leased  part  to  one  tenant  and  part  to  another,  and 
subsequently  conveyed  in  fee,  but  reserving  an  annual  rent:  Held,  that  en- 
try upon  the  premises  and  distress  of  the  orignial  tenants  goods  for  rent  ac- 
cruing subsequent  to  the  conveyance  of  the  whole  estate,  amounted  loan 
<ividion  of  the  principal  tenant,  and  suspended  the  recovery  of  the  rent. 
Lewis  i\  Payn,  4  Wend.  4"23. 

An  entry  of  the  owner  into  a  pari  only  of  the  premises,  works  a  suspen- 
sion of  the  u'/«"/e  fent.  id.  But  the  fact  of  possession  subjects  the  tenant  to 
the  payment  of  retit,  unless  there  has  been  an  eviction.  Where  the  land- 
lord let  an  gnfimshed  house,  and  agreed  to  finish  if,  by  a  certain  time,  but 
did  not  do  it:  Held,  that  t!ie  only  remedy  of  the  tenant  against  the  landlord 
was  upon  the  covenant.     Allen  v.  Pell,  4  Wenil.  505;  12  id.  52D. 

The  assignment  by  the  assignee  of  a  term  for  years  of  his  interest,  by 
way  of  mortgage  for  the  security  of  a  debt,  does  not  divest  him  and  his  ten- 
ant, if  the  debt  for  which  the  term  was  mortgaged  be  paid  or  satisfied  pre- 
vious to  the  accruing  of  the  rent.  Evertson  v.  Sawyer,  2  WpikI.  507.  Nor 
does  the  sale  of  such  an  interest  by  virtue  of  a  judgment  and  execution  de- 
stroy such  relation  previous  to  the  purchaser's  obtaining  possession.  But  if 
the  "tenant  to  the  defendant  in  the  execution  (Hsclaims  the  title  of  his  land- 
lord by  attorning  to  the  purchaser,  though  such  attornment  be  void  by  stat- 
ute as  divesting  the  landlord  of  his  possession,  yet  the  disclaimer  may  be 
set  up  as  a  bar  to  the  landlord's  right  to  recover  rent  accruing  after  the  time 
that  the  right  of  redemption  has  expired,  id. 

The  fact  of  possession  subjects  the  tenant  to  the  payment  of  rent,  unless 
there  has  been  an  eviction.  But  a  tenant  cannot  be  evicted  from  that  which 
he  never  possessed.  In  Etheridge  v.  Osborn,  12  Wend.  529,  when  the  lease 
was  executed,  tiie  raceway  had  not  been  dug,  but  the  landlord  covenanted 
that  he  would  dig  it.  Held,  that  the  refusal  of  the  landlord  to  enable  the 
tenant  to  enjoy  what  he  was  entitled  to  by  the  agreement  was  not  a  defence 
against  the  payment  of  rent.  Had  the  landlord,  f;fter  the  raceway  was  dug, 
and  the  water  let  in,  and  enjoyment  by  the  tenant,  subsequently  diverted 
the  water  from  the  raceway,  or  a  part  of  it,  that  would  have  amounted  to  an 
eviction,  within  the  case  of  Lewis  v.  Payn,  4  Wend.  423,  and  Dyett  v.  Pen- 
dleton, 8  Cowen,  727. 


Sect.  l.J 


Of  Admissions. 


345 


When  an  agent,  who  is  employed  to  receive  money,  and 
who  is  bound  by  his  duty  to  his  principal  from  time  to  time 
to  communicate  to  him  whether  the  money  is  received  or  not, 
renders  *an  account  from  time  to  time,  which  contains  a  state-  [  *384  ] 
ment  that  the  money  is  received,  he  is  bound  by  that  account, 
unless  he  can  shew  that  the  statement  was  made  unintention- 
ally, or  by  mistake.  (l)(a) 

It  is  an  established  rule,  that  where   wharfingers    acknowl-  ^Vharfin- 
edge  the  title  of  a  person  for  whom  they  hold  property,  it  is  ^*^'^*" 
considered  as  an  attornment,  and  they  are  conclusively  estop- 
ped from  disputing  such  title,  whatever  maybe  the  claim  of  a 
third  person,  at  least,  if  they  were  fully  acquainted  with  the 
nature  of  such  claim,  when  they  made  the  admissions.  (2) 

But  in  general,  a  person's  conduct  and  language    have    not  Not  con- 
the  effect  of  operating   against  him  by   way  of  estoppel.  (3)  '^'"*'^*'- 


1  Camp.    101.     Lambert    v-    Oakes,    1 
Lord  Raym.  433.     Crilchlow  v.    Parry, 

2  Camp.  182.     Cliaters  v.  Bell,  4    E.sp. 
210.     Lambert  V.  I'acU,  1  Salk.  127. 

(1)  Shaw  V.  Picton,  4  B.  fe  C.  729. 
The  cases  respecting  the  effect  of  the 
receipt  of  premium,  by  the  underwri- 
ter f'lom  tlie  assured  seem  referable  to 
the  principles  under  consideration,  Dal- 
zel  V.  RIair,  1  Camp.  532.  A  parish 
certificate  is  evidence  for  all  the  rest  of  the 
world,  against  the  parish  which  granted 
it,  and  conclusive  as  to  the  parish  to 
which  it  is  directed,  4  T.  II.  2i5G.  Rex 
V.  Headconie,  Burr.  S.  C.  253. '  A  man 
is  estopped  by  the  recognizance  of  bail 
entered  into  for  him  by  the  name  in 
wliich  he  is  sued,  from  pleading  a  mis- 
nomer, although  he  is  not  a  party  to  the 
recognizance,  .Meredeth  v.  Hodges,  2  N. 
R.  453.  A  tenant  is  concluded  by  the 
statement  he  make.s  to  his  landlord  as  to 
the  time  of  entry.  Doe  d.  Eyre  v.  Lam- 
bley,  2  Esp.  (J35.  A  person  giving  a 
wrong  name  previous  to  suing  out  of  pro- 
cess, cannot,  in  an  action  against  the 
sheriff,  avail  himself  of  the  error  in  the 
name.  Price  v.  Ilarwood,  3  Camp.  108. 
And  .'^ee  Bass  v.  Clive,  4  AL  &  S.  13. 
An  owner  of  a  ship  giving  a  bill  of  la- 
ding by  which  freight  appears  to  have 
been  paid  before  a  ship's  de[>arture 
from  her  landing  port,  is  estopped  against 


the  assignee  of  such  bill  from  claiming 
freight  on  the  arrival  of  the  vessel  at  her 
port  of  destination,  Howard  v.  Tucker, 
1  B.  .^  Ad.  712. 

(2)  Gosling  V  Birnie,  7  Bing.  345. 
The  rule  is  laid  down  with  the  limitatioa 
in  the  text  by  Alderson,  J.  But  the  oth- 
er .Judges  lay  it  down  in  a  more  unqual- 
ified way,  See  Stonard  v.  Dunkin,  2 
Camp.  344.  Hawes  v.  Watson,  2  B.  <fc 
C.  541.  Dixon  v.  Hammond,  5  B.  & 
A.  310.  Ogle  V.  Atkinson,  5  Taunt. 
750.  Barton  «.  Boddington,  1  C.  4"  P. 
207. 

(3)  Per  Chambre  J.,  in  Smith  v.  Tay- 
lor, 1  N.  R.  210.  It  has  frequently 
happened,  with  regard  to  the  evidence 
in  some  of  the  cases  about  to  be  exam- 
ined, that  the  Judges  have  spoken  of  it 
as  conclusive.  But  it  would  seem  that 
in  many  instances,  at  least,  they  had  re- 
ference to  the  effect  of  the  evidence  un- 
der tire  circumstances  of  some  particular 
case,  and  it's  probable  weight  with 
the  jury.  See  AIner  v.  George,  1 
Camp,  392.  Bristow  v.  Eastman,  1 
Esp.  172.  The  Courts  are  unwilling  to 
extend  the  doctrine  of  estoppels,  be- 
cause it  tends  to  prevent  the  investigation 
of  truth,  see  by  J^or<l  Keriyon,  in  Rex 
V.  Lahbenham,  4  T.  R.  234.  Wi^htw. 
67.  6  Ksp.  20.  5  M.  ik.  S.  7(h  10 
East,  105.     3  T.  R.    C32.    Peake,    91. 


(a)  The  factor  may  take  a  notn  payable  to  himself,  and  yet  not  be  an- 
swerable to  his  principal  for  the  value  of  the  goods  sold  ; — the  relation  be- 
tween principal  and  factor  is  not  affected.  7  Mass.  'iG;  id.  tid\  ;  (i  Cowen, 
18 L  Anil  he  may  blend  the  sales  of  several  person.s'  fjoods  in  the  same 
note;  but  he  inu.st  transfer  the  note  or  account  to  his  principals  when  de- 
manded, id.  Uiit  see  ]  D.  &  B.  ^91,  wliere  a  different  view  is  taken  of  the 
liability  of  the  factor  who  blends  the  claims  of  his  principal  with  his  own 
in  the  same  note. 


44 


346  Hearsay  Evidence.  [Ch.  18. 

[  *385  ]  *Accordingly  we  have  seen,  that  in  the  instances  in  which  the 
party  has  assumed  a  particular  character,  or  has  recognized  a 
particular  character  as  belonging  to  another  person,  his  con- 
duct and  language  have,  in  general,  not  been  deemed  conclu- 
sive against  him.  (1) 

It  has  been  held,  that  a  person  is  not  concluded,  as  to  the 
amount  of  his  property,  by  an  oath  taken  before  commission- 
ers under  the  property  tax  acts.  (2)  An  insolvent's  omission 
of  a  particular  debt  in  his  schedule,  to  which  he  was  sworn, 
will  not  preclude  him  from  afterwards  recovering  the  debt.  (3) 
An  entry  at  the  Custom  House  in  the  names  of  a  firm  is  not 
conclusive,  against  the  person  making  the  entry,  except  as 
between  him  and  the  crown.  (4) 

A  person  who  had  given  notice  to  his  landlord  that  he  had 
become  bankrupt,  in  consequence  of  which  his  landlord  accep- 
ted possession  of  the  demised  premises,  is  not  estopped  from 
disputing  the  fact  of  his  bankruptcy,  in  an  action  brought  by 
him  against  his  assignees,  the  assignees  not  having  been  par- 
ties or  persons  to  the  transaction  between  himself  and  his  land- 
lord. (5)  Nor  would  such  a  person  be  precluded  from  dispu- 
ting his  commission  by  surrendering,  or  by  petitioning  the 
Chancellor  to  enlarge  the  time  for  surrendering.  (6) 

on  oaih.°"        With  respect  to  the  relative  credit  and   weight   of  admis- 
sions which  are  not  conclusive,  it  may  be  observed,  that   the 
admissions,  which  may  be  considered  as  having  the    greatest 
force,  are  those  which  are  delivered  on  the  oath  of  the  party. 
Thus  answers  in    Chancery  are  very  strong  evidence,    by 

[  *386  ]  way  *of  admission,  in  Courts  of  Law.  (1)  (a)     Where    a  bill 

1  B.  &  P.  110.  2  N.  R.  453.  In  (6)  Mercer  t).  Wise,  3  Esp.  219. 
Combe  v.  Pitt,  Burr.  1590,  it  was  held,  (1)  B.  N.  P.  237.  Earl  of  Sussex  v. 
that  a  man  who  had  given  money  to  an-  Temple,  Lord  Raym.  310.  Doe  d.  Dig- 
other  for  his  vote,  should  not  be  admit-  by  t).  Steel,  3  Camp.  115,  where  the 
ted  to  say  that  he  had  no  vote.  But  it  statement  in  the  answer  was  as  to  belief. 
is  difficult  to  account  for  the  principle  of  Salter  v.  Turner,  2  Catnp.  87.  3  Camp, 
this  ruling,  as  the  moral  delinquency  of  401.  Lady  Dartmouth  v.  Roberts,  16 
the  briber  is  obviously  irrelevant  tf)  the  East  334.  Rumney  u.  Beale,  Gwil.1861. 
question  of  the  effect  of  the  evidence.  Gully  v.  Bishop  of  Exeter,  5  Bing.  171. 
A  return  under  1  &;  2  Geo.  4,  c.  87,  of  Grant  v.  Jackson,  Peake,  203,  where 
corn  in  the  possession  of  a  party  as  an  answer  of  a  partner  who  had  been 
sold  and  delivered  to  B  ,  does  not  pre-  joined  as  a  defendant  in  a  suit,  but  as  to 
elude  him  from  shewing  that  it  was  de-  whom  a  nolle  prosequi  had  been  en- 
livered  to  D.  on  account  of  B.,  but  that  tered  to  a  bill  in  Chancery  filed  by  per- 
B.  was  not  to  have  possession  before  sons  not  parties  to  the  record,  was  re- 
payment, Woodley  v.  Brown,  2  Bing.  ceived,  not  as  a  judicial  proceeding,  but 
527.  as  a  naked  admission.     See    5    Pr.  485. 

(1)  Vide  supra.  12  Vin.  Ab.  93.    Study  r.  Saunders,    2 

(2)  Rex  V.  Clarke,  8  T.  R.  220.  D.  Sf  R.  347,  answer  by  two  defendants 

(3)  Hart  v.  Newman,  3  Camp.  13.  to  a  bill  of  a  third   defendant,    charging 

(4)  Ellis  V.  Watson,  2  St.  453.  them  as  partners. 

(5)  Heme  v.  Rogers,  9  B.  &  C.  577. 

(a)  Answer  of  one  in  the  Probate  Court  in  respect  to  the  property  of  an 
intestate  left  in  his  hands,  was  admitted  under  a  bill  in  equity  by  the  ad- 
ministrator to  get  possession  of  the  property.    8  Pick.  254. 


Sect.   1.]  Of  Admissions.  347 

was  filed  by  the  plaintiff  as  lessee  of  the  dean  and  chapter  of 
Carlisle,  and  the  defendant  offered  in  evidence  an  answer  of 
the  dean  and  chapter  in  a  former  suit,  in  which  they  admit- 
ted the  existence  of  a  modus,  it  was  held  to  be  not  only  ad- 
missible, but  strong  evidence  to  prove  the  modus  ;  and  an  is- 
sue having  been  directed,  Mr.  Justice  Bayley,  at  the  trial,  laid 
great  stress  upon  the  answer,  as  being  cogent  evidence  against 
the  defendant  in  the  issue  ;  observing  that  it  was  much  stron- 
ger, than  if  it  had  been  the  answer  of  an  individual.  (2)  A 
person's  answer  in  Chancery  is  evidence  against  him  by  way 
of  admission,  in  favour  of  a  person  who  was  no  party  to  the 
Chancery  suit  ;  (3)  for  the  statement  being  upon  oath  cannot 
be  considered  as  conventional  merely.  A  mere  voluntary  af- 
fidavit is  evidence  as  an  admission  against  the  party  who 
makes  use  of  it.  (4) 

Admissions,  by  the  deed  of  a  party  under  seal,  are  entitled  Admu- 
to  great  weight,  on  account  of  the  deliberation  implied  by  deeds, 
the  nature  of  the  instrument,  if  they  do  not  even  exclude  any 
contrary  statement.  Between  the  parties  to  the  deed,  at  least, 
they  may  be  pleaded  by  way  of  estoppel,  and  though  not  so 
pleaded,  would  generally,  as  between  such  parties,  have  the 
effect  of  an  estoppel.  (5)  (a) 

(2)  De  Whelpdale  v.  Milburn,  5  Pr.  47,  affidavit  of  agent  used  by  defendant 
485.  for  purpose  of  pulling  off  a  trial. 

(3)  Ashmore  t).  Hardy,  7  C.  ^  P.  (5)  See  Doe  d.  Pritcliard  v.  Dodd,  2 
505,  and  see  Grant  v.  Jackson,  Peake  Nev.  &  M.  45.  Com.  Dig.  Ev.  B.  5, 
203,  supra,  n.  1.  Lainson  r.Treinere,  1  Ad.  &  Ell.   792. 

(4)  Style,  446.  Sacheverell  v.  Sach-  Bowman  v.  Taylor,  2  Ad.  Sf  Ell.  278. 
everell,  Bac.  Ab.  Ev.  628.  Vicary's  Fort  ».  Clarke,  1  Rnss.  604.  The  doc- 
case,  Bac.  Ab.  Ev.  623.  Voluntary  af-  trine  of  Lord  Coke,  that  a  recital  can- 
fidavit  of  joint  covenantee,  B.  N.  P.  238.  not  operate  by  way  of  estoppel,  Co.  Lilt. 
Cameron  v.  Lightfoot,  2  Bl.  Rep.  119,  352.  b,  seems  no  longer  tenable.  That 
that  the  making  use  of  an  affidavit,  is  a  recital  operates  against  those  who 
an  admission,  which  supersedes  the  ne-  claim  under  a  party  to  a  deed.  Filzger- 
cessity  of  proving  that  it  has  been  sworn  aid  v.  Eusticc,  Bac.  Ab.  Ev.  647.  2  P. 
or  signed,  B.  N.  P.  238.     P».ex  r.  James,  Wms.  432. 

1  Show  97.     Johnson  v.    Ward,  6  Esp. 

(«)  A  technical  receipt  may  be  explained  by  parol  evidence,  and  is  in  tiiiis 
respect  an  exception  to  the  general  rule  of  evidence  applicable  to  written 
inslruraenta.  Kellogg  t?.  Richards,  14  Wend.  118.  Thus,  though  the  deed 
acknowledge  the  receipt  of  the  consideration,  the  grantor  may  yet  jjrovo 
that  the  consideration  was  not  in  fact  paid,  for  the  purpose  of  recovering  the 
money  due.  id.  See  also  4  N.  H.  R.  22i) ;  Pritchard  r.  Brown,  id.  397  ; 
Wilkinson  v.  Scott,  17  Mass.  249;  Shepherd  v.  Little,  14  J.  R.  210;  Schil- 
linger  v.  M'Coun,  G  Greenl.  364;  Hall  i'.  Hall,  8  N.  II.  R.  120;  M'Crea  v. 
i'urrnont,  16  Wend.  4(17  ;  Belden  v.  Seymour,  8  Conn.  304  ;  12  S.&,  R.  131 ; 
7  id.  311; — all  which  seem  to  consider  tiiis  acknowjedguient  in  a  deed  as 
never  conclusive  :  hut  open  to  explanation,  so  far  at  least  as  to  enable  the 
grantor  to  recover  the  money  due. 

In  Hail  V,  Hall,  supra,  the  plaintiff  was  permitted  to  prove  that  it  wna 
agreed  that  he  sliould  receive  a  further  sum  than  the  amount  actually  paid, 
as  the  consideration  of  the  conveyance,  upon  the  contingency  of  tiie  de- 
fendant's making  sale  of  the  land  for  a  greater  suui. 


348  Hearsay  Evidence.  [Chap.   18. 

[  *3S7  ]  *It  has  been  held,  in  an  action  of  trespass  against  a  sheriff 
for  taking  the  property  of  the  plaintiff,  that  the  plaintiff  may- 
give  in  evidence  a  deed  executed  by  the  sheriff  to  a  purchaser 
of  the  property,  reciting  the  writ  and  the  seisure  and  sale  of 
the  property  under,  and  that  the  deed  so  produced  is  prima 
facie  evidence  of  the  facts  recited  in  it,  (1)  (a) 

(1)  Woodward   v-    Larking,    3   Esp.  Lampon  r.  Cooke,  5  B.    &   A-    607.— 

286.     Mayor  of  Carlisle  v.    Jilamire,    8  Ford  v.  Lord  Grey,  6  Mod.  44.  Salk, 

East,  493,  name  of  a  corporation.     The  285.     Crajjg  c.  Norfolk,    2    Lev.    108. 

recital  of  a  lease  in  a  release,  is  evidence  Htzgerald  v.  Eustace,  Gib.  L.  Ev.   100. 

of  tlie  release.     Eord  r.  Gray,    1    balk.  Ilardr.  123.     Date  of  lease  is    evidence 

286.     The  recital  of  an  ancient  charter  of  it's  execution  on  the  same  day,  1  Salk. 

in  a  modern  charter  is  evidence,  per  Ab-  485.     See  further,  Ingleby  v.  Smith,  10 

bot,  J.,  5  M.  .i-  S.  78.     Gervis  V.Grand  Bing  84.     H.N.I'.    298.     Cossensv. 

Western    Canal    Company.     The    reci-  Cossens,  Willis, 24.       Shelly  v.  Wright, 

lals  in  a  deed  may  conline  the   effect  of  V\  illis,    9.     2    Vcntr.    171.       Marchio- 

other  admissions  in  the  same    document,  ness  of  Annandale  v.  Harris,  2  P.  Wms. 

as  of    the   receipt  of  purchase   money.  432.  Burleigh  v.  Stibbs,  1    T.   R.  465. 


In  Tyler  ij.  Carlton,  7  Greenl.  175,  the  court  say — "without  contradicting 
the  deed  as  to  the  consideration  e.xpressed,  it  was  competent  for  the  plain- 
tiff, to  prove  an  additional  consideration,  not  expressed."  In  Wallis  v.  Wal- 
lis,  4  Mass.  135,  Parsons  C.  J.  says,  "  in  this  case,  beside  the  valuable  con- 
sideration expressed,  a  consideration  of  natural  affection  may  be  averred,  as 
consistent  with  it." 

[a)  An  executor,  administrator,  guardian,  or  collector  of  taxes,  is  not  re- 
quired to  set  forth  in  their  deeds  all  the  anterior  facts,  as  to  their  authority 
and  proceedings ;  they  need  only  state  the  capacity  in  which  they  profess 
to  act,  for  if  they  state  all  the  particulars,  such  recitals  will  not  be  proof. 
Per  Mellen,  C.  J.  4  Grec^nl.  R.  237 ;  .3  id.  438. 

The  creditor  as  well  as  the  debtor  may  show  matter  in  avoidance  of  an 
extent  of  execution,  and  prove  that  nothing  passed  by  it,  for  the  purpose  of 
defeatincr  any  title  under  it,  or  in  order  to  obtain  a  new  execution  upon  the 
judofment.  The  one  may  have  his  property,  and  the  other  his  judgment  re- 
Vived.  Burnham  v.  Coffin,  8  'N.  IL  R.  114;  3  id.  33;  Tate  v.  Anderson,  9 
Mass.  92.  But  in  a  levy  on  personal  estate,  the  case  is  different.  The 
plaintiff  cannot  maintain  an  action  on  the  judgment  without  showing  that 
lie  has  refunded  the  money  to  the  owner,  or  the  officer  ;  or  at  least  that  he 
)iad  relinciuished  all  right  to  it.     Batchelder  v.  Watson,  8  N.  H.  R.  121. 

In  the  case  of  Snyder's  lessee  v.  Snyder,  G  Binn.  489,  where  administra- 
tors had  sold  at  auction  and  conveyed  certain  lands  of  the  intestate,  under 
an  anthority  derived  from  the  orphan's  court,  it  was  held,  that  p</ro/  tvidence 
was  inadmissible  to  contradict  the  statement  of  the  administrator's  deed,  by 
.showing  that  a  part  of  the  premises  mentioned  in  that  deed  was  excepted  by 
them  at  the  time  of  the  sale.  So,  in  Jackson  v.  Croy,  12  J.  R.  427,  where 
parol  evidence  Avas  offered  to  prove  that  part  of  the  premises  conveyed  were 
excepted  by  him  at  the  time  of  the  sale. 

But  a  deed  cannot  operate  as  an  estoppel  against  a  feme  covert  in  an  ac- 
tion of  ejectment  sued  against  her  after  the  death  of  her  husband,  from  set- 
ting up  au  interest  acquired  since  the  execution  of  the  deed  by  her.  17 
J.  R.  167. 

Recitals  in  a  deed  which  do  not  constitute  an  essential  part  of  the  con- 
veyance, are  certainly  not  conclusive  evidence  against  a  third  person  of  the 
facts  recited  ;  neither  is  a  recital  of  the  power  or  authority  of  the  grantor 
for  the  making  of  the  conveyance  in  ordmary  cases,  even  presumptive  evi- 
dence of  the  existence  of  such  power.  Thus,  to  sustain  a  conveyance  exe- 
cuted by  an  attorney  under  a  power,  by  an  executor  under  a  will,  or  by  a 
sheriff  under  an  execution,  the  power  of  attorney,  the  will,  the  existence 


Sect,  l.j  Of  Admissions.  349 

It  has  been  laid  down, — apparently  without  sufficiently  ad- 
verting to  the  circumstance  of  the  deed  being  used  by  a  party 
to  ii,  or  to  the  fact  of  it's  being  pleaded  by  way  of  estoppel  or 
not, — that  a  party  who  executes  a  deed  is  prechided  from  say- 
ing, that  the  facts  stated  in  the  deed  are  not  truly  stated.  (2)  (6) 
But  it  seems  that  a  party  to  a  deed  may  contradict  it,  in  au 
action  between  himself  and  a  stranger  to  it  :  if  not  pleaded  by 
way  of  estoppel,  as  there  is  no  mutuality,  there  can  be  no 
estoppel. 

In  a  recent  case,  where  a  plea  contained  new  matter  of  jus- 
tification, upon  which  issue  was  joined,  and  a  deed  was  given 
in  evidence  the  recital  of  which  directly  contradicted  the 
new  matter  alleged  in  the  plea,  it  was  held  nevertheless,  that 
the  defendant  was  not  precluded  from  submitting  matter  of 
defence  to  the  jury,  and  that  the  recital  in  the  deed  ought  not 
to  have  been  treated  as  conclusive  upon  the  trial  of  the  issue, 
the  recital  not  having  been  pleaded  by  way  of  estoppel.  (3)  (c) 

(2)  By  Bayley  J.,  in  Baker  v.    Dew-     r.  CooKe,  5  B.  4-  A.  606. 
ey,  1  B.  &.  C.  707.     And   see   Rown-         (3)  Bowman  r.  Rostron,  2  Ad.  Sf  El. 
tree  v.  Jacob,  2  Taunt.    128.      Lanipon     295. 


should  be  produced  as  the  best  evidence  of  the  power  to  sell.  But  when 
the  deed  upon  its  face  purports  to  be  made  in  pursuance  of,  or  in  the  execu- 
tion of  a  particular  power,  and  the  existence  of  such  power  is  established, 
it  would  be  a  direct  contradiction  of  a  substantial  part  of  the  deed  itself  to 
permit  a  party,  claiming  in  opposition  to  that  deed,  to  prove  by  parol  evi- 
dence that  such  deed  was  not  made  by  virtue  of  that  power,  but  under  some 
other  which  would  give  to  the  grantee  a  different  interest  Per  Chancellor, 
in  11  Wend.  5:25. 

It  was  held,  therefore,  that  a  purchaser  need  only  to  examine  the  convey- 
ance from  the  sheriff,  which  show  the  authority  of  the  sherifi';  and  to  satisfy 
himself  from  the  judgment  record,  and  from  the  execution  and  endorsments 
thereon,  showins;  it  was  in  the  sheriff's  hands  at  the  time  of  the  sale,  that 
the  sheriff  had  the  power  to  sell  the  premises  under  the  judgment.  See  7 
Monroe's  R.  G19. 

[b)  In  Stow  V.  Wise,  7  Conn.  214,  a  deed  was  given  by  A.M. as  agent  of 
the  Middleton  M.  Co.,  reciting  that  he  was  authorized  by  a  vote  of  .said 
company,  and  in  pursuance  of  said  power,  conveyed,  &.c. :  Pleld,  that  not 
only  the  agent  was  estopped,  but  all  claiming  under  and  through  him. 
Daggett,  J.  observes,  that  where  a  party  has  solemnly  admitted  a  fact  by 
deed,  under  his  hand  and  seal,  he  is  estopped  not  only  from  disputing  the 
deed  itself,  but  every  fact  which  it  recites.  And  if  he  is  estopped,  then  all 
persons  claiming  under  and  through  him  are  estopped,  id.  Hoyt  v.  Dimon, 
5  Day,  483. 

(c)  The  rule  of  law  is,  that  a  deed  containing  a  recital  of  another  deed,  is 
evidence  of  the  recited  deed  against  the  grantor,  and  all  persons  claiming 
by  title  derived  from  him  subsequently.  Penrose  w.  Griffith,  4  Binn.  231. 
So,  it  was  decided  that  a  recital  in  a  will,  that  the  testator  had  conveyed  the 
estate  to  I).,  was  an  estoppel  of  the  heir  to  deny  that  fact.  3  J.  Cas.  174. 
See  also  the  observations  of  Mr.  J.  Story,  4  Pet.  R.  1.  A  man  who  admits 
a  fact  or  deed  in  general  terms,  either  by  reciting  it  in  an  instrument  exe- 
cuted by  him,  or  by  acting  under  it,  shall  not  be  received  to  deny  its  ex- 
istence. 8  Cowen,  54.3.  But  when  the  truth  appears  from  the  same  deed, 
then  the  adverse  party  is  not  estopped  to  allege  the  truth,  id. 


350  Hearsay  Eindence.  fCli.   18. 

[  *3S8  ]  *\Vhere  a  deed  is  used  as  an  admission  against  a  party  to  it 
by  a  person  who  is  not  a  party,  it  seems  material  to  consider 
that  an  admission  of  a  fact,  not  made  upon  oath,  may  have 
been  entered  into  between  persons  from  various  causes,  be- 
sides that  of  a  conviction  of  the  truth  of  the  facts  contained 
in  it.  The  evidence  may  have  been  of  a  conventional  nature 
merely  ;  and  the  only  question  seems  to  be,  whether  it  is  ad- 
missible at  all  as  between  a  party  to  a  deed  and  a  stranger  to 
it.(l)(a) 

Written  After  admissious  under  oath  and  by  deed,  those  next  in  or- 

aclmissioDs.     ,  .,  ,  ,.  ,.  •'  ,      .      .  . 

der,  with  regard  to  credit  and  importance,  are  admissions  by 
writing  not  under  seal. 

Receipt.  A  receipt  for  money  is   an   admission  of  great  weight  a- 

gainst  a  party,  but  not  conclusive  ;  and  there  is  no  legal  ob- 
jection to  his  shewing,  if  he  can,  that  the  money  was  not  re- 
ceived, or  that  he  gave  the  receipt  under  a  misrepresenta- 
tion. (2)  An  indorsement  on  a  deed  of  the  receipt  of  the 
sums  of  money,  not  being  under  seal,  cannot  amount  to  an 
estoppel,  and  is  only  evidence  for  a  jury,  capable  of  being  re- 

[  *389  1  butted  by  other  circumstances   *in  the   case.  (1)     A   receipt 

(1)  Supra,  p.  230.  Slaney  «.  Wade,  Cooke,  5  B.  ^  A.  609,  tlie  deed  recited 
1  Mylne  if  Craig,  338.  Fort  t\  Clarke,  an  agreement  to  pay,  and  afterwards 
1  Russ.  604.  Rex  v.  Scammonden,  3  T.  stated  that  "  in  consideration  of  the  pur- 
R.  474.     Rex  v.  Laindon,  8  T.  R.  479.  chase  money  being  now  so  paid,  as  here- 

(2)  Stratton  v.  Ruslal,  2  T.  R.  336.  in  before  is  mentioned,"  ^c.,and  it  was 
Benson  v.  Bennet,  1  Camp.  394,  n.  said  that  estoppels  were  odious  in  the 
Attorney  General  r.  Randall,  2  Eq.  Ca.  law,  and  ought  to  be  clearly  made  out, 
Ab.  cited  and  approved  of,  2  T.  R.  369.  and  that  as  the  deed  did  not  state  an  ab- 
In  AIner  r.  George,  1  Camp.  392,  Lord  solute  payment  the  payment  might  be 
Ellenborough  says,  there  can  be  no  disputed.  It  was  said  by  Holroyd,  J., 
doubt  that  a  receipt  in  full,  where  the  in  the  same  case,  with  reference  to  the 
person  who  gave  it  was  under  no  misap-  receipt  indorsed  on  the  deed,  that,  not 
prehenson,  and  can  complain  of  no  fraud  being  under  seal,  it  could  not  amount  to 
or  imposition,  is  binding  upon  him. —  an  estoppel,  but  could  only  be  evidence 
And  in  Bristow  v.  Eastman,  1  Esp.  172,  for  the  jury  capable  of  being  rebutted  by 
per  Lord  Kenyon,  as  between  underwri-  the  other  circumstances  of  the  case.  It 
ter  and  insured,  the  acknowledgment  of  would  seem  that  the  observations  of  Lord 
receipt  of  premium  is  conclusive.  Dal-  Ellenborough,  in  AIner  i'.  George,  and 
zel  r.  Main,  1  Camp.  532,  De  Gamin-  of  Lord  Kenyon,  in  Bristow  v.  Eastman, 
da  ».  Pigou,  4  Taunt.  246.  If  a  man  as  of  the  conclusiveness  of  receipts,  must 
give  a  receipt  for  the  last  rent,  the  be  intended  as  spoken  with  reference  to 
former  is  presumed  to  be  paid,  Gilb.  Ev.  their  effect  upon  the  minds  of  the  jury. 
142.  A  receipt  on  the  back  of  a  bill  of  (1)  Skaife  v.  Jackson,  2  B.  &,  C. 
exchange  is  prima  facie  evidence  of  421.  By  Holroyd,  J.,  5  B.  ^  A.  611. 
payment  by  the  acceptor,  Peake,  25.  Graves  v.  Key,  3  B.  ^  .Ad.  318.  It  is 
The  giving  a  receipt  does  not  exclude  otherwise,  if  the  deed  itself,  or  any  oth- 
parol  evidence  of  payment,  Rambert  v.  er  deed,  state  such  receipt,  for  then  the 
Cohen,   4    Esp.    214.     la   Lampon    v.  doctrine  of  estoppels  may  apply.  Rown- 

(a)  Although  an  agreement  in  writing  is  not  binding,  yet  if  it  has  been 
acted  upon,  it  may  be  admitted  in  evidence  to  .show  the  terms  on  which 
certain  advances  of  money  were  made  in  an  action  brought  to  recover  back 
such  advances.  Governenr  v.  Elliott,  2  Hall,  2ll.  Here,  the  agreement  in 
writing  was  admitted  to  show  the  terms  on  which  certain  services  were  ren- 
dered and  the  money  advanced. 


Sect.   1.] 


Of  Admissions. 


351 


Invenlor}'. 


upon  a  negotiable  instrument  may  be  explained  in  the    same 
manner  as  any  other  receipt.  (2)  (a) 

An  adjustment  on  a   policy,   tliough  prima  facie  evidence  A-jjust- 
against  a  person  signing  it,  does  not  bind    him,   unless  there 
was  a  full  disclosure  of  the  circumstances  of  the  case.  (3)  In 
cases  of  fraud,  or  where  the  underwriter  is  mistaken  in  the 
law  or  in  a  material  fact,  the  adjustment  has  been   held   not  to 
be  conclusive.  (4)     An  inventory,  exhibited  for  the  purpose 
of  obtaining  probate  in  the  Ecclesiastical  Conrt,  seems  not  to 
be,  in  general,  presumptive  evidence  of  assets  to  the   amount 
stated  ;  (5)  and  probate  stamp  seems  not    to  be  frima  facie  Probate 
evidence  of  the  receipt  of  assets  to   the    amount  covered    by  "'^""P* 
the  stamp.  (6) 

In  Bacon  v.  Chcsney,  (7)  it  was  held  that    it    was    compe-  invoice, 
tent  to  shew  a  mistake  in  an  invoice,   though  it    was  in   the 
same  case  *considered,  that  if  it  had  been  delivered  with    the 
goods,  or  under  a  Judges'  order,  the  party  would  have    been 
bound  by  it. 


[  *390] 


tree  v.  Jacob,  2  Taunt.  144.  See  Lam- 
pon  V.  Cooke,  5  B.  4-  A.  609.  Baker 
rt.  Dewe)-,  1  B.  4-  C.  704.  Co.  Lilt. 
512. 

(2)  Per  Cur.  in  Graves  v.  Key,  3  B. 
4-  Ad.  818.  Stratton  v.  Rastal,  2  T. 
11.  366.  Wyat  r.  Marq.  Hertford,  3 
East.  147.  Hearne  v.  Rogen?,  9  B.  ^ 
C.  586.  Lord  Kenyon,  in  Sciioley  v. 
Walsby,  1  Peake,  34,  was  of  opinion 
that  a  receipt  on  the  back  of  a  bill  might 
be  explained  by  parol  evidence  to  be  a 
receipt  from  the  drawer,  and  not  the  ac- 
ceptor. In  Fairmaner  v.  Budd,  7  Bing. 
574,  a  receipt,  "  received  10^.  for  a  colt 
warranted  sound,"  signed  by  an  illite- 
rate man,  was  held  not  conclusive  of  the 
contract. 

(3)  Shepard  ti.  Chewther,  1  Camp. 274 
An  adjustment  and  the  striking  out  the 
name  from  a  policy  does  not  prove  pay- 
ment, Adams  v.  Sanders,  1  M.  8f  M. 
373.  Hee  Ilayner  v.  Hall,  4  Taunt. 
725. 

(4)  Christain  v.  Coombe,  2  Esp.  487. 
In  the  absence  of  invalidating  circum- 
stances, adjustments   have  been  spoken 


of  by  the  Judges,  as  conclusive  ;  by 
which,  il  is  conceived,  is  only  meant, 
that  such  would  be  the  natural  effect  of 
the  evidence  upon  tlie  minds  of  the 
jury. 

(5)  Stern  r.  Mills,  4  B.  &  Ad.  657. 
It  was  held,  in  Hickey  v.  Hayter,  1  Esp. 
313,  that  an  inventory  exhibited  by  nil 
administrator  was  prima  facie  evidence 
of  assets. 

(6)  Per  Lillledale  and  Parke,  J.,  in 
Stern  v.  Mills,  4  B.  ^  Ad  657,  where  it 
was  said  that  Foster  f.  Blakelock,  5  B. 
&  C.  328,  had  not  been  much  consid- 
ered as  to  this  point.  In  Mann  v.  Long, 
3  A.  4'  E.  702,  the  probate  was  held 
to  he  adinissible  evidence  in  an  issue  of 
plene  administravit,  but  it  was  con- 
sidered as  not  being  ol  itself  jf>rima/a- 
cie  evidence  of  assets  actually  come  to 
the  hands  of  the  executors,  though  it 
might  be  of  future  assets,  unless,  per- 
haps, where  there  had  been  long  acqui- 
escence. 

(7)  Bacon  v.  Chesney,  1  St.  193. 
The  mistake  was  in  the  time  of  credit 
allowed  for  payment. 


(a)  The  payment  of  a  less  sum  than  the  whole  debt,  without  a  release,  is 
no  satisfaction  of  the  plaintiff's  claim.  Cumber  i?.  Wain,  1  str.  42(5 ;  Har- 
rison V.  Close,  2  J.  R.  44'J  ;  Fitch  v.  Sutton,  5  East,  232 ;  Seymour  v.  Min- 
turn,  17  J.  R.  169.  But  where  a  beneficial  interest  is  acquired,  and  a  valu- 
able consideration  received  by  the  plaintiffs,  when  they  agreed  to  accept 
less  than  the  whole  demand,  it  is  different.  Thus,  where  the  defendant  pro- 
cures other  persons  to  endorse  his  note  na  further  secnrltij,  v/h'ich  the  creditor 
accepts  in  full  satisfaction  and  discharge  of  the  whole  debt,  held,  that  it  is 
a  discharjre,  on  the  ground  of  an  accord  and  satisfaction,  20  J.  R.  7(5;  (> 
Cranch,  253. 


352  Hearsay  Evidence.  [Ch.  18. 

deii'vercd  ^  ^'^^  delivered  by  an  attorney  to  his  client,    for   business 

done  during  a  certain  period,  is  strong  presumptive  evidence 
against  any  additional  item  within  the  same  period  ;  but  the 
bill  is  not  like  a  deed  to  operate  as  an  estoppel,  and  the  party 
will  be  at  liberty  to  prove  the  fact  of  having  transacted  other 
business  for  the  defendant.  (1) 

in<=crip-  ^Yhe  inscription  on  a  stage  coach,  of  the  name  of  the  party 

licensed  to  use  it,  is  evidence  against  him  of  ownership,  as 
well  in  an  action  as  on  summary  proceedings.  (2)  It  has  been 
held  that  where  a  defendant  signed  an  admission  of  a  debt,  to 
enable  an  attorney  to  prove  it  under  a  commission  of  bank- 
ruptcy then  subsisting  against  him,  it  was  not  an  admission 
of  the  delivery  of  a  signed  bill,  and  did  not  dispense  with  the 
necessity  of  proof  of  the  delivery  of  such  a  bill,  in  an  action 
subsequently  brought  for  the  same  claim  ;  (3)  because  the  bill 

Ceriificate.  might  have  been  proved  under  the  commission  without  being 
delivered.  A  parish  certificate  is  conclusive  upon  the  parish 
granting  it,  with  respect  to  that  parish  to  which  it  is  granted, 
and  jonma/aae  evidence  with  respect  to  other   parishes.  (4) 

Signature.  ^\^  paper  Written  by  a  party  is  evidence  against  him  by  way 
of  admission,  although  it  is  signed  by  another  person.  (5) 

Bill  in  *jt  ^yg^s  j,jj(j  down  bv  Lord  Kenyon,  that  a  bill  in  Chancery 

Chancer}'.      .  r  '  i*  J         > 

r  *391  1  ^^  ^°^  evidence  of  any  fact  contained  in  it,  but  it  was  to  be 
taken  merely  as  the  suggestion  of  counsel.  (1)  In  the  Banbury 
Peerage  case  a  question  was  proposed  to  the  Judges,  "  wheth- 
er any  bill  in  Chancery  can  ever  be  received  as  evidence  in  a 
Court  of  Ijaw,  to  prove  any  facts  either  alleged  or  denied  in 
such  bill  as  filed  in  Chancery  :"  to  which  the  Judges  answer- 
ed that,  "  generally  speaking,  a  bill  in  Chancery  cannot  be  re- 
ceived as  evidence  in  a  Court  of  Law,  to  prove   any  fact  eith- 

d)  Loveridge  t".  Botham,  1    Bos.  ^-  (4)  Rex  «.  Lnbbenham,  4  T.  R.  251 . 

Pul.  49.     It  is  there  stated  that  an  atlor-  A  certificate  has  been  said  to  be  mighty 

iiey's  bill  furnishes    conclusive   evidence  evidence  as  to    other    piirishes  ;  see    by 

;igainst  an  increase  of  charge  on  any    of  Builer,  J.,  citing  the  words  of  Lord  Holt, 

the    items   contained    in    it.     But    there  ib. 

does  not   appear  to    be    any   ground   for  (5)   Alexander  p.  Brown,   1  C.    &  P. 

this    distinction,     except,    perhaps,  that  2SS.     As  to  the  effect  of  a  signature   as 

possibly  the  client  might  not  be  supposed  evidence  of  a  notice  of  the    contents  of 

aware  of  the  omission    of  an    item,    but  a  written  instrument,  Harding  v.    Crelh- 

would  naturally    act  in   confidence,    that  em,  Esp.  57.      Vide  infra,  as  to  signa- 

the  charges,  of  which  he  miaht  not  be  an  tures  by  prisoners  of  their  examinations, 

adequate   judge,  were  correct.     On    the  (I)   Uoe  d.  liowerman  v.  Sybourn,    7 

effect  of  a  bill  delivered  by  the    plaintiff  T.  R.  3.     The  bill  was  offered    in    evi- 

in  support    df  a    plea    of  abatement   for  dence  by  the  lessor   of  the    plaintiff,   to 

non-joinder  of  parties,  see    1  Stark.   Ca.  prove  an  admission    by    the    defendant  ; 

296.  the   allegations    in    the    bill,   which  was 

(2)  Barford  v.  Nelson,  1  B.  &  Ad.  filed  by  the  defendant  and  another  per- 
571,  whatever  is  written  by  a  party  may  son,  being  inconsistent  with  the  fact  of 
be  used  as  an  admission  against  him,  a  legal  estate  being  in  the  person,  in 
though  it  be  not  signed  by  him,  1  C.  i^-  whom  the  defendant  contended  that  it 
P.  288.  was  vested. 

(3)  Eicke  v.  Nokes,  1  M,  &  M.  303. 


Sect.  1.]  Of  Admissions.  353 

er  alleged  or  denied  in  such  bill  as  filed.  But  whether  any- 
possible  case  may  be  put,  which  would  form  an  exception  to 
such  general  rule,  they  cannot  undertake  to  say."  (2)  It  will 
be  observed,  that  the  answer  of  the  Judges  does  not  pointed- 
ly negative  the  admissibility  of  a  bill  in  Chancery  when  pro- 
duced by  way  of  admission  ;  and  there  are  authorities  in  fa- 
vour of  such  evidence  being  received.  (3)  It  would  seem,  that 
the  investigation  of  truth  Avould  be  best  promoted  by  receiv- 
ing the  evidence,  subject  to  such  observations  as  might  be 
called  for,  in  regard  to  the  usual  manner  in  which  bills  of 
Chancery  are  prepared. 

With  respect  to  verbal  admissions,  it  may  be  observed,  that  ^f'^aiad- 

11  -i-i  lie  •  missions. 

they  ought  to  be  received  with  a   great  deal  oi  caution.      It 

may  *be  a  correct  principle  that  the  statement  of  a  person  to  [  *392  ] 

the  prejudice  of  his  own  interest,  when  used  against  himself, 

is  entitled  to  credit  without  the  tests  of  the  party  being  sworn 

or  cross-examined.     Still  the  repetition   of  oral  statements  is 

always  subject  to  great  imperfections.     The  party  from  whom 

they  proceed  may  probably  not  have    correctly  expressed  his 

meaning  :  this  meaning,  if  correctly  expressed,  may  have  been 

misunderstood  :  a  slight  alteration  of  the  words,  without  any 

design    of  intentional   misrepresentation,    may   entirely  vary 

the  effect  of  his  statement.  (1) 

Admissions  must  in  all  cases  be  brought  home  to  the  party  Admissions 
in  a  suit,  against  whom  they  are  used,  or  to  some  person  who  „fade.°'" 
is  identified  in  interest  with  him  ;  and  it  is  not  a  sufficient 
ground  for  receiving  the  admission,  that  it  might  have  been 
used  to  the  prejudice  of  the  person  from  whom  it  proceeds. 
Thus,  in  an  action  of  trover  brought  to  recover  the  value  of 
goods  distrained  on  the  ground  that  the  defendant  was  not  the 
plaintiff's  landlord,  the  plaintiff's  case  Avas,  that  he  had  paid 
rent  to  another  person,  and  it  was  held,    that    the    statement 

(2)  Le  Marchanl's  Gardiner  peerage,  ed,  how  far  tlie   question,    of  a   bill    in 

App.  413.     2    Selw.    iV.  P.  714.     And  Chancery  being  evidence  by  way   of  au 

see  Ferrers  v.    Shirley,    Fitzg.    197.     1  admission,  was  under  the  consideration 

Wighiw.  .325.     Wooilelt  v.  Roberts,    1  of  the  .ludges,   in  the    answer  stated    in 

Ch,  Ca.  64.     Two  other  questions  were  the  text. 

p<it  to  ihc  Judges  as  to  the  admissibility  (3)  B.  N.  P.  235.  Snow  v.  Philips, 
of  a  bill  in  Chancery,  and  depositions  1  Sid.  221.  Taylor  w.  Cole,  7  T.  II.  3, 
under  particular  circunistances.  The  n.  Where  a  bill  in  chancery  was  recei- 
.ludges  lield,  that  they  were  neither  evi-  ved  as  evidence  of  reputation  in  a  case 
dence  of  pedigree  or  of  particular  fiicts  of  pedigree,  which  perhaps  is  an  author- 
deposed  to.  But,  it  would  seem  that  ity  a /or<(o/-t,  (Jilb.  Ev.  49. 
the  answers  to  these  two  latter  questions  (1)  See  by  Mr.  .lustico  J.  Parke, 
were  founded  on  the  reasoning,  that  the  note  to  Karl  v.  PicUen,  5  ('.  .^  P.  542. 
declarations  being  post  litem  motam.  Burr.  2057.  2  Wils.  399.  Per  Lord 
could  not  be  evidence  in  matters  of  ped-  I'.lleidjorough,  I  M,  <.V  ^-  '>3().  Per  .Al- 
igrce,  and  that  the  statements  in  the  bill,  derson,  B.,  Rex  v.  Simmons,  (i  ('.  &  1*. 
or  depositions  could  not  be  evidence  540.  Oti  the  edect  of  admissions  in  the 
against  a  person  not  being  party  or  pri-  Ecclesiastical  Courts,  per  Lord  Stowell, 
vy  to  the  proceedings  ;  it  may  bo  doubt-  1  Hagg.  301. 

45 


354  llearsmj  Evidence.  [Gh.   18. 

of  that  person  respecting  the  receipt  of  rent  "Was  not  evidence 
without  calling  him.  (2) 
Admissions.      Aduiissions  are  clearly  evidence  against   a  party  to  the  rec- 

bv  DEriy  X        •' 

ord  who  has  made  them.  But  some  questions  have  arisen  as 
to  what  persons  arc  to  be  deemed  parties  ;  the  circumstance 
giving  rise  to  these  (picstions  being,  when  one  person  is  named 
a  party  on  the  record,  who  is  only  nominally  a  party,  while  an- 
other is  the  person  really  interested.  On  this  subject,it  has  been 
held,  that  admissions  are  evidence  in  favour  of  the  other  side, 
whether  made  by  a  nominal  party  on  the  record,  who  sues  as 
a  trustee  for  the  benefit  of  another,  (3)  or  whether  made  by 
[  *393  1  the  party  *who  is  really  interested  in  the  suit,  though  not 
named  on  the  record.  ( 1 )  The  following  examples  will  illus- 
trate the  several  parts  of  this  rule. 
Bypartj  In  the  case  of  Bauerman  and  another  v.  Radenius  (2) 

benlfrit°of  which  was  an  action  by  the  shippers  of  goods  against  the  cap- 
another.  tain  of  a  ship,  for  not  delivering  the  goods  in  proper  condition, 
a  letter  written  by  the  plaintiffs  was  given  in  evidence  on  the 
part  of  the  defendant,  in  which  they  entirely  exculpated  the 
defendant  from  all  misconduct ;  and  it  appeared  also  from  the 
letter,  that  the  goods  were  shipped  on  the  risk  of  third  per- 
sons, and  that  the  plaintiffs  were  not  really  interested  in  the 
suit :  the  counsel  on  the  other  side  contended,  that  the  parties 
really  interested  ought  not  to  be  concluded  by  the  admission 
of  the  plaintiffs,  who  were  merely  nominal  parties  in  the  ac- 
tion :  Lord  Kenyon  was  of  a  different  opinion,  and  the  plain- 
tiffs were  nonsuited.  The  Court  of  King's  Bench  afterwards 
affirmed  the  nonsuit.  Mr.  Justice  Lawrence,  on  that  occa- 
sion said,  "Van  Dyck  and  Co.,  the  persons  on  whose  risk  the 
goods  were  shipped,  are  in  this  difficulty  ;  the  present  plain- 
tiffs either  have  or  have  not  an  interest ;  but  it  must  be  con- 
sidered that  they  have  an  interest,  in  order  to  support  the  ac- 
tion ;  and  if  they  have,  an  admission  made  by  them,  that  they 
have  no  cause  of  action,  is  admissible  evidence.  I  have  look- 
ed into  the  books,  to  see  if  I  could  find  any  case  in  which  it 

(2)  Spargo  v.  Brown,  9  B.  Sf  C.  935.  release,  the  Courts  will  sometimes  or- 
See  Bernasconi  v.  Farebrother,  3  B.  Sf  der  it  to  be  delivered  up.  Payne  v. 
Ad.  372,  and  by  Holroyd,  J.,  in  Barough  Rogers,  Doug.  291.  1  Chitt.  390.  Tidd. 
V.  White,    4   li.  Sf  C.    325.     And   vide  (J77. 

infra.  Secondary  Evidence.  (1)  Rex  7-.  Ilardwiclc,  11  East,   578, 

(3)  Bauerman  r.  Radenius,  7  T.  R.  589.  An  attorney  conducting  a  case  in 
664.  Craib  v.  D'Aeth,  ib.  670,  n.,  ad-  Court  may  be  called  as  a  witness  by  the 
mission  by  obligee  of  an  assigned  bond,  opposite  side,  and  be  asked  who  em- 
And  this,  notwithstanding  the  absence  of  ploys  him,  in  order  to  shew  the  real  par- 
any  beneficial  interest  appearing,  as  in  ty,  and  so  let  in  his  declarations,  Levy 
Bauerman  v.  Radenius,  from  the  adcnis-  v.  Pope,  1  ]M.  Sf  M.  440. 

sion  itself.    B.  N.  P.  237,  conira.  Salk.         (2)  7  T.  R.  664. 
260.     Where  a  nominal    party   gives  a 


Sect,   l.j  Of  Admissions.  355 

has  been  holden,  tliat  an  admission  of  a  plaintiff  on  the  rec- 
ord was  not  evidence,  but  have  found  none."  (3)  (a.) 

*In  Abler  v.  George,  (1)  it  was  held,  that  a  receipt  in  full,  [  *394  ] 
given  by  the  plaintiff  on  the  record,  could  not  be  invalidated, 
by  shewing  that  the  plaintiff  had  assigned  all  his  interest,  and 

(3)  In  Davis  »'.  Ridge,    3    Esp.    101,  ing  creditor,  and  tiie    admission    related 

in  an  action    against   trustees   for   trust-  to  his  debt,  see  Young  v.  Smith,  1    Esp. 

money  received.  Lord  Eldon    refused  to  121. 

allow  evidence  of  the  admission  of  one         (1)  Camp.  392.     See  Gibson  v.  Win- 

of  the  trustees,  of  the  receipt   of    trust-  ter,  5  B.  i^  Ad.  9(3.     The  proper  remedy 

money.     In  Tullock  i'.   Duim,  R.  &  M.  is  by  appliciition  to  the    equitable  juris- 

416,  it  was  held,  that  a  promise  by    one  diction  of  the    Court.      By  Lord    Ellen- 

of  the  several  executors  is  not   sufficient  borough,  ih.     Leigh  v.  Leigh,  1  B.  ^  P. 

to  take  a  case  out  of  the  statute  of  limi-  447.      Payne   v.    Rogers,    Doug.    407. 

tations.     And  see  Atkins  u.  Tredgold,  2  It  seems  questionable,    whether   the  re- 

B.  &  C.  28,  that  a  payment  by    one   of  ceipt  migiit  not  have  been  disputed  on 

several   alieno  jure,  does   not  raise    an  anotiier  principle  of  analogy  to  the  cases 

assumpsit  ia  all.     In  Dowden  v.  Fowle,  in  which  it  lias  been  held,  tliat  a   security 

4  Camp.  38,  an  admission  by  one  of  sev-  given  in  fraud  of  third  persons  shall    not 

eral  assignees  of  a  bankrupt  was  receiv-  be  available  even  as  between  the  parlies 

ed,  in  an  action  in  which    the    assignees  iheniselves,  Cockshot  r.    Bennet,    2    T. 

were  the  real    parties.     But  the    person  R.  763.     Smith  v.  Bromley.  Uoug.  671. 
making  the  admission  was  also  petition- 


(a)  The  admissions  of  persons  in  aider  droit,  such  as  an  e.xecutor,  is  not 
admissible  as  evidence  in  a  suit  for  a  debt  due  from  the  testator,  against  his 
co-executors  to  establish  the  original  demand.  4  Cowen,  493.  But  see  Hill 
V.  Buckminster,  5  Pick.  391. 

Where  an  e.xecutor  of  a  will,  was  also  a  legatee  and  party  to  the  record,  it 
"was  held,  that  his  declarations  were  admissible  to  show  wjiat  occurred  when 
the  will  was  made.     Atkins  v.  Sanger,  1  Pick.  192. 

In  Baxter  v.  Penniman,  8  Mass.  134.  it  ^vas  held,  that  an  admission  made 
to  an  executor  or  administrator,  was  sufficient  to  take  a  case  out  of  the 
statute.  In  Emerson  i'.  Thompson,  IG  Mass.  429,  the  new  promise  to  pay 
was  made  by  an  executor;  and  the  court  cite  Baxter  v.  Penniman.  In  Pock 
V.  Botsford,  7  Conn.  180,  the  will  contained  the  clause  "  after  my  just  debts 
and  funeral  charges  are  paid  ;"  and  the  executor  acknowledged  that  some- 
thing was  due;  and  afterwards  reckoned  with  the  plaintifl"  and  agreed  that 
$65,(j(>  was  due  to  him:  but  the  court  decided,  that  neither  the  clause  in 
the  will,  nor  the  acknowledgment  of  the  executor  would  take  the  case  out 
of  the  statute  of  limitations.  See  also  the  case  of  Scott  v.  Hancock,  13 
Mass,  1G2;  3  Pick.  365;  5  Greenl.  I  in. 

The  acts  or  admissions  of  executors  are  not  evidence  against  heirs  or 
devisees.  3  Cowen,  612;  1  id.  263,  But  the  declarations  of  executors  and 
devisees  are  admissible  upon  the  issue  devisavit  vet  non  ;  for  such  issue  is  in 
the  nature  of  a  suit,  and  the  executors  and  devisees  are  regularly  parties. 
2  Murphy,  317. 

Peck  V.  Botsford,  7  Conn.  R.  172,  decides  that  an  acknowledgment  by  an 
executor,  that  a  demand  against  his  testator,  barred  by  the  statute  of  limita- 
tions, is  duo,  is  not  sufficient  to  remove  the  statute  as  a  bar.  Martin  v.  Wil- 
liams, 7  J.  R.  330  goes  to  the  point  only^  that,  in  an  action  by  an  executor,  an 
acknowledgment  of  the  debt  by  the  debtor  within  six  years,  is  evidence  to 
support  a  new  promise,  and  to  remove  the  bar  created  by  the  statute.  Ch.  J. 
Marshall  12  Wh.  R.  . ')(!.'),  says: — "Declarations  against  him  (the  personal 
roDre.sentativc)  liave  never  been  held  to  take  the  promise  of  the  testator  ov 
intestate  out  of  the  act.     Indeed  the  contrary  has  been  held." 


356 


Hearsay  Evidence. 


[Ch.  18. 


By  person 
inlerested, 
though  not 
parly  to  the 
record. 

Cestui  que 
trust  of 
bond. 


Inlerflsted 
in  policy. 


Interested 
in  freight. 

[  *395  ] 


was  a  mere  trustee,  and  that  the  receipt  was  fraudulently 
given. (a) 

In  an  action  of  debt  upon  a  bond  conditioned  to  pay  money 
to  L.  D.,  for  whose  benefit  the  action  was  brought,  the  defend- 
ant proved  that  L.  D.  had  said,  in  a  conversation  respecting 
this  bond,  that  the  defendant  owed  nothing  ;  upon  which  the 
jury  found  for  the  defendant.  On  a  motion  for  a  new  trial,  it 
was  argued,  that  the  declarations  of  L.  D.,  who  was  not  a  par- 
ty to  the  action,  ought  not  to  affect  the  plaintiff;  but  the 
Court  said,  that  the  case  was  to  be  considered  as  if  L.  D.  was 
the  plaintiff",  the  action  being  for  L.  D.'s  benefit.  (2) 

An  action  upon  a  policy  may  be  brought  in  the  name  of 
the  person  who  effected  it,  though  he  be  not  the  person  in- 
terested ;  yet  the  persons  interested  are  so  far  looked  upon  as 
parties  to  the  suit,  that  the  declarations  of  any  of  them  are  ad- 
missible in  evidence  against  the  plaintiff.  (3) 

In  an  action  by  the  master  of  a  ship  for  freight,  the  declar- 
ations* of  the  owner  of  the  ship  are  admissible  against  the 
plaintiff,  as  the  action  is  brought  for  the  owner's  benefit.  (1) 


(2)  Hanson  v.  Parker,  1  Wils.  527. 
Kemble  v.  Farren,  3  C.  &  P.  623, 
where  it  appeared  that  the  agreement 
which  was  llie  subject  of  the  suit,  was 
made  on  behalf  of  the  plaintiff  and  the 
other  proprietors  of  a  theatre,  the  dec- 
larations of  the  other  proprietors  were 
received.  See  Davis  v.  Dinvvoody,  4 
T.  R.  678,  where  the  Court  looked  into 
the  relation  of  trustee  and  cestui  que 
trust,  for  the  purpose  of  disqualifying  a 
witness  on  the  ground  of  interest. 

(3)  By  Lord  Ellenborough,  in  Bell  v. 
Ansley,  16  East,  143.  See  also  the 
case  of  Duke  v.  Aldridge,  cited  by 
Counsel  in  Bauerman  v.  Kadenius,  7 
T.  R.  665,  and  Bell  v.  Smith,  5  B.  4- 
C.  188. 

(1)  Smith  V.  Lyon,  3  Camp.  465. 
See  Robson  v.  Andrade,  1  St.  Ca.  372. 
Harrison  v.  Vallance,  1  Bing  45,  where 
the  defendant  had  admitted  that  he  had 
detained  the  deed  for  the  detention  of 
which  the  action  was  brought,  at  the 
request  of  the  person  whose  declarations 
were  received,  and  who  was  substanti- 
ally interested  in  the  detention  of  it. 
Mr.  Justice  Bayley,  in  Spargo  t;.  Brown, 
9  B.  &  C.  938,  says,  that  the  parties  in 
Harrison  v.  Vallance,  were  identified. — 


The  case  of  Hart  v.  Horn,  2  Camp.  92, 
seems  opposed  to  the  preceding  cases, 
where,  in  replevin,  the  declarations  of 
the  person  under  whom  the  defendant 
made  cognizance  were  held  not  to 
be  admissible  for  the  plaintiff.  It  did 
not  appear  that  the  person  making  cog- 
nizance was  indemnified.  But  in  Han- 
cock V.  Welsh,  1  St.  Ca.  347,  in  an  ac- 
tion of  assumpsit,  by  A.  B.,  against  the 
assignees  of  a  bankrupt  for  rent  due 
from  them  as  tenants,  a  verdict  against 
the  assignees  in  a  replevin  suit  brought 
by  the  assignees  against  the  plaintiff  of 
A.  B.,  and  in  which  the  bailiff  made 
cognisance,  was  held  to  be  admissible 
for  A.  B.  in  the  action  of  assumpsit  ;  the 
issue  found  upon  the  cognizance  being 
that  the  assignees  were  tenants  of  A.  B. 
Vide  Supra,  p.  95,  as  to  the  in- 
competency of  witnessess  on  the 
ground  of  being  substantially  parties. — 
Por  other  cases  see  1  Wils.  257. 
11  East,  578.  1  Bing.  45.  1 
Stark.  372.  Lord  Raym.  190.  4  Camp. 
38.  6  Esp.  121.  16  East,  143.  1 
Esp.  390.  11  East,  584,  n.  Duke  v. 
Aldridge,  cited  7  T.  R.  665.  1  Ventr. 
350.     1  Esp.  395. 


(a)  The  contrary  seems  to  haTC  been  decided  in  Frear  v.  Evertson,  20  J. 
142.  Here,  the  plaintiff  on  the  record  in  an  action  of  assumpsit  to  recover 
for  goods  sold  and  delivered  had  assigned  his  interest  in  the  chose  in  action, 
of  which  the  defendant  had  notice ;  held,  that  evidence  of  admissions  made 


Sect,   1.]  Of  Admissions.  357 

With  respect  to  admissions  by  rated  parishioners,  it  seems  rf.''^dpar- 

isliioncr* 

that  upon  an  appeal  against  an  order  of  removal,  the  declara- 
tions of  a  rated  inhabitant  of  the  appellant  parish  are  evidence 
against  that  parish,  without  calling  the  inhabitant,  and  shew- 
ing that  he  refused  to  be  examined.  (2)  (a) 

*A  creditor  who  has  indemnified  a  sheriff,  for  making  a  seiz-  ^^^'3'.  j"; 

,  ■         r  •  ■  -Ti  i~-ii        (lemi)ifvilie'. 

ure  under  a  writ  oi  execution,  is  considered  as  substantially  r  #39(3  1 

(2)  Rex  V.  Whiiiey,  Lower,  1  M.  on  the  same  ground  that  the  admissions 
&  S.  636.  In  Rex  v.  JIaidwicU,  of  rated  parishioners  were  received.  In 
11  East,  578,  the  party  had  refused  to  a  previous  case  of  the  Corporation  of 
be  examined.  Rex  v.  Wobourn,  10  London  v.  Long,  1  Camp.  22,  wiiere 
East,  395,  402.  Before  tlie  54  Geo.  3,  the  question  related  to  the  powers  of  a 
e.  170,  the  admissions  of  rated  parish-  city  officer,  Lord  Ellenborough  held,  that 
loners  were  received  on  account  of  their  the  declaraiions  of  an  inditTerent  individ- 
being  parties  to  the  suit,  and  it  would  ual  of  the  Corporation  were  not  admis- 
seeni  that  the  statute  wiiich  renders  par-  sible,  l)ut  that  lie  would  admit  what  the 
ishioners  competent  witnesses,  does  not  otiicer  himself  had  been  iieard  to  say 
interfere  with  the  rule  of  evidence  res-  upon  the  subject.  Mayor  of  London  v. 
pecting  admissions.  The  power  of  call-  Jolifle,  2  Keb.  295.  Lord  Dorset  v. 
ing  the  inhabitant,  even  if  he  be  com-  Carter,  3  Keb.  300.  Rex  v.  City  of 
pellable  to  become  a  witness,  may  often  London,  1  Ventr.  '351.  2  Lev.  231. 
no!  compensate  for  the  loss  of  his  admis-  2  Vern.  351.  11  East,  584,  n.  7  T. 
sion.  With  respect  to  admissions  by  in-  R.  665.  Vide  Supra,  94,  on  the  in- 
dividual members  of  a  corporation  ;  in  competency  of  rated  parishioners  as  wil- 
an  action  by  the  Trustees  of  Ancient  nesses  on  the  ground  of  their  being  par- 
Britons  V.  Spurrier,  Sitt.  after  Easter  ties.  Weller  v.  Governors  of  l-'ound. 
Term,  1822,  KB.  In  an  action  of  as-  Hosp.  Peake,  163.  2  Lev.  231.  1 
sumpsit  for  money  had  and  received  ;  Vern.  254.  B.  N.  P.  290.  5  T.  R. 
defendant  was  employed  to  fetch  a  sum  174,  competency  of  freemen  of  corpo- 
from  the  bank  of  the  society — 10/.  of  it  ration.  Doe  v.  Tooth,  3  Y.  ^  J.  19. 
was  missing,  a  witness  was  allowed  to  Simons  v.  Smith,  R.  &  M.  29,  co-part- 
state  what  a  member  of  the  society  had  ner.  VVhitmore  v.  Wilks,  1  \\.  &,  M. 
said  the  night  afterwards;  though  the  soci-  214,  trustee  suing  by  treasurer.  Fenn  v. 
ety  consisted  of  six  hundred  members;  and  Granger,  3  Camp.  178,  one  or  two  less- 
the  evidence  was  stated  to  be   admitted  ors  iti  ejectment. 

by  him  subsequently  could  not  be  admitted  to  impair  the  interest  of  the  as- 
signee. The  court  added: — "As  to  his  being  a  witness,  that  he  was  a 
party  to  the  record  was  enough  to  exclude  liim,  unless  by  corisent  of  tlie  real 
parties  in  interest." 

(a)  But  see  the  case  of  Osgood  V.Manhattan  Co.,  3  Cowen,  623,  where 
it  is  said  that  the  case  of  King  v.  Hardwick,  11  East.,  578,  was  directly  over- 
ruled in  Hartford  Bank  v.  Hart,  5  Day,  493. 

The  overseers  of  the  poor  for  a  town,  which  they  represent,  have  no  au- 
thority by  their  mere  acts  and  declarations  to  cliange  the  settlement  of  a 
pauper  from  one  town  to  another,  and  confess  away  the  rights  of  tiieir  cor- 
poration, and  subject  it  to  liabilities  and  burdens  by  any  of  their  arrange- 
ments. 1  Fairf  18.5.  Tlio  admissions  of  one  corporator  cannot  affect  the 
corporation.  14  Maine,  141.  Neither  can  the  declarations  of  an  agent 
when  not  acting  in  tiiat  character  affect  tlie  corporation.     7  Grecnl.  R.  421. 

The  late  case  of  the  Welland  Canal  v.  Hatheway,  8  Wend.  480,  decides 
that  although  defendant  had  entered  into  contracts  with  the  plaintiffs,  it  did 
not  dispense  with  proof  on  the  part  of  the  plaintiffs  showing  tiiat  they  are  a 
corporation.  The  existence  of  the  corporation  was  not  to  be  inferred  from 
the  contract  with  it  by  its  corporate  name.  8ee  also  Jackson  v.  Plumb,  8  J. 
R.  378  ;  14  id.  41G.  Plaintiffs  suing  as  a  corporation  are  bound  to  prove  as 
part  of  their  title,  on  the  plea  of  the  general  issue,  that  they  were  incorpo- 
rated by  competent  authority.  19  J.  11.  300;  1  Wend.  555.  But  see  14  J. 
R.  238  ;  1  Hall  191 ;  0  Cowen,  23. 


358 


Hearsay  Evidence. 


[Ch.   18. 


IVlilii 


oil. 


Issue  on 
lhii)iliiy  n 
straiistL-r. 


[*39- 


tlic  defendant,  in  an  action  brought  against  the  sheriff  on  ac- 
count of  the  seizure  ;  (1)  on  the  ground,  that  the  sheriff,  by 
his  conduct,  substitutes  himself  for  the  original  defendant.  (2) 
IJut  in  a  late  case  it  was  held,  that  the  declarations  of  a  de- 
ceased petitioning  creditor,  made  after  the  commission,  are 
not  evidence  against  the  assignees,  in  an  issue  to  try  whether 
the  commission  was  concerted  between  the  petitioning  credit- 
or, the  bankrupt,  and  the  attorney :  (3)  the  petitioning  credit- 
or, it  was  said,  could  not  be  taken  to  be  the  real  party  inter- 
ested in  the  cause  ;  and  the  result  of  the  trial,  if  the  verdict 
were  for  the  plaintiff,  would  not  necessarily  be  the  supersed- 
ing of  the  commission,  the  issue  being  merely  a  proceeding  to 
satisfy  the  Chancellor's  conscience. 

Evidence  of  admissions,  made  by  strangers  to  a  suit,  are 
sometimes  received  in  evidence,  where  the  question  in  the 
suit  is,  whether  a  particular  claim  might  have  been  enforced 
as  against  those  strangers.  Thus  it  has  been  held,  that  on  a 
]  plea  in  abatement  for  the  non-joinder  of  A.  B.  as  a  *defendant, 
his  declarations  before  action  brought  were  evidence  in  sup- 
port of  the  plea;  (1)  on  the  ground,  that  whatever  would  be 
evidence  in  an  action  brought  against  him  to  prove  him  liable, 
might  be  received  to  prove  his  liability  on  this  issue.  Appar- 
ently, on  the  same  principle,  the  admissions  of  bankrupts,  or 
entries  in  their  books,  made  before  the  act  of  bankruptcy,  are 
receivable  in  evidence,  to  prove  the  petitioning  creditors' 
debt.  (2)  And  the  admission  of  a  petitioning  creditor,  made 


(1)  Dyke  v.  Aldridge.  cited  7  T.  R. 
665,  see  Dowden  v.  Fovvle,  4  Camp. 
33.     Youn?  V.  Smith,  6  Esp.  121. 

(2)  Per  Richard-'on,  J.,  3  B.  &  B. 
13().  The  circumstance  that  a  person 
indemnifies  a  party  to  the  record,  does 
not  seem  in  all  cases  sufficient  to  let  in 
his  admissions,  Drake  v.  Sykes,  7  T.  R. 
117.  That  an  admission  which  would 
be  evidence  against  tlie  party  is  evidence 
against  the  sheriff.  Gibbon  v.  Coggan,  2 
Camp.  ISS.  Slomon  v.  Heme,  2  Esp. 
695.     Williams  ».  Bridges,  2  St.    42. 

(3)  Harwood  v.  Keys,  1  M.  Sf  R. 
204.  It  was  suggested  by  Patteson,  J  , 
that  in  Young  v.  Smith,  6  Esp.  121, 
which  was  loosely  reported,  the  declara- 
tions must  have  been  made  before  the 
commission,  and  that  in  Dowden  v. 
Fowle,  4  Camp.  38,  the  fact  of  the  pe- 
titioning creditor  having  indemnified  the 
sheriff  was  the  principle  of  the  decision. 
The  assignees  gave  the  instructions  for 
the  defence. 

(1)  Clay  u.  Langslow,  1  M.  &  M. 
45. 

(2)  Walts  V.  Thrope,  1  Camp.  376, 
entry  in  books.  Hoare  v.  Coryton,  4 
'Taunt.  560,  a  signed  account.  Taylor  v. 


Kinloch,  1  St.  176.  Ewer  v.  Preston, 
Rep.  Temp.  Hard.  378,  see  Evans  v. 
Lake,  B.  N.  P.  282.  In  Parker  v.  Bar- 
ker, 1  Br.  (^  B.  9,  a  bankrupt's  admis- 
sions that  he  was  in  partnership  with  a 
trader,  were  received  as  proof  of  the 
trading.  But  the  propriety  of  this  de- 
cision was  doubted  in  Bromley  v.  King, 
R.  Sf  M.  22S.  It  may  be  observed,  that 
in  an  action  by  assignees,  the  question 
as  to  the  petitioning  creditor's  debt  is, 
whether  it  could  liave  been  enforced 
against  the  bankrupt,  which  point  the 
admission  clearly  establishes.  The  bank- 
rupt's declarations  before  the  act  of 
bankruptcy  may  be  used  against  the  as- 
signees to  shew  a  collusion  as  p:irt  of  the 
res  gestcE.  Thompson  v.  bridges,  8 
Taunt.  336.  After  the  bankruptcy, 
though  before  the  commission  or  fiat,  the 
admissions  of  the  bankrupt  are,  it  seems, 
not  receivable.     Smallcomb   v.    Bruges, 

13  Pr.  136.     Taylor  u.  Kinloch,    1  St. 

176.  Sanderson  v.  Laforest,  1  C,  4"  P- 
46.  Though  a  bankrupt's  declaration, 
that  a  bill  would  not  be  paid,  has  been 
admiiled  to  supply  proof  of  notice, 
where  the  admission  was  made  after 
bankruptcy  and  before  the  issuing  of  the 


Sect.  1.]  Of  Admissions.  359 

before  the  commission,  as  to  the  amount  of  his  debt^  is,  on  a 
similar  ground,  receivable  in  evidence  against  the  assignees 
of  a  bankrupt.  (3)  In  cases  of  this  description  the  issue  ap- 
pears to  be,  what  were  the  mutual  rights  of  two  persons,  (one 
or  both  being  strangers  to  the  suit,)  at  a  particular  period  ; 
which  inquiry  would  seem  to  let  in  such  evidence  as  *would  [  *393  ] 
have  been  receivable  between  those  persons.  In  the  last  ex- 
ample, however,  it  is  not  clear,  that  the  decision  did  not  turn 
on  the  point,  that  the  assignees  were  liable  to  be  atfectcd  by 
admissions  of  the  petitioning  creditor,  because  he  was  a  privy 
in  estate. 

An  admission  may  have  been  made  by  a  party  to  a  record,  j^!'"^,';^^J'^''" 
when  in  a  different  capacity  from  that  in  which  he  is  concern-  in  (iirterent 
ed  as  regards  the  suit ;  and  it  seems  to  have  been  considered,  <^''i''"^'0- 
in  such  a  case,  that  his  former  admission  ought  not  to  be  ev- 
idence against  him.     For  the  change   which  has  taken  place 
in  his   interest,  his  means  of  knowledge,   and  his  powers  of 
acting,  shew  that  his  former  admission  is  not  a  safe  criterion 
of  the  truth  of  the   claim  or   defence ,  which  he  is  at  present 
setting  up.     And  the  injustice  of  allowing  his  former  admis- 
sion to    be  used   against   him  may  appear  to  be  the  greater, 
where  by  the  change  of  his  situation  he  has  become  the  rep- 
resentative of  the  interest  of  others,  with  whom  in  his  former 
situation  he  had  no  privity. 

Thus  it  has  been  held,  that  the  declarations  of  a  person, 
made  before  he  became  assignee  of  a  bankrupt,  are  not  evi- 
dence against  him,  when  suing  as  such  assignee.  (1)  And  the 
declarations  of  a  prodiein  ami,  made  before  action  brought, 
are  not  admissible  for  the  defendant.  (2) 

It  appears  to  be  a  general  principle,  that,  in  a  civil  suit  by  ^v  other 
or  against  several  persons,  who  are   proved  to  have  a  joint  in-  The  suit, 
terest  in  the  decision,  a  declaration  made  by  one  of  those  per- 

com mission.     Brett  v.     Levett,    13    E.  that  he  could  nut  but  ttiink  that  the  dec- 

213,  cited  in  Taylor  v.  Kinlocli,  1  Stark,  larations  must  have  been  made  before  the 

Ca.  176.     But  at  the  period  of  that   de-  conimis^sion. 

cision,  as  it  would  seem    from    the    case         (1)  Fenvvick  w.  Tiiornton,  1   M.  &  M. 

of  Dowlon  V.  Cross,  1  Esp.    168,    there  51. 

cited,   a    bankrupt's    declarations,   were  (2)  Webb   v.  Smith,    R-    &.  M.  106. 

admitted  to  prove  the  petitioning   credi-  This  rule  is  illustrated  by  the  doctrine  of 

tor's  debt,  if  made  at  any   time    before  estoppels.     Thus,  a  woman  is  not  estop- 

the  commission  issued.     See    Schooling  ped,  after  coverture,  by  an  admission  up- 

M.  Lee,  3  St.  151.     Marsh  v.   Meager,  3  on  record   by   her   husijand    and    herself 

St.  353.     Bernasconi  v.    Farebrotber,    3  during  coverture.     An    heir  claiming  as 

B.  Sf  Ad.  372.     An  admission  made  af-  heir  of  his  father   is  not  estopped  by  an 

ter  an    act   of  bankruptcy,    is  evidence  e.stot)pel  upon  him  as  heir  to  his  mother, 

against  the  bankrupt  himself  in  an  action  A  party  suing  as  executor,  in    an  action 

brought  by  him  against   an    assignee,  to  of  debt  upon  a  bond,  is  not  estopped,  by 

try  the  validity  of  the    commission.  Jar-  having  been   barred  by  an  action  on  the 

rut  I,'.  Leonard,  2  M.  &.  S.  265.  same    bond  when  he  sued  as  administra- 

(3)  Smith  V.  Young,  6  Esp.  121.     Of  tor.     Robinson's    ca.so,     5    Co.     32   b. 

this  case,  Mr.  Justice    Pattesoii,  in  liar-  Com.    Dig.  Estoppel,    C.    VVrottesly    )'. 

wood  y.   Keys,    1   M.  k  Rob.    205,  ob-  Bendert,  3  P.    W.   237.  Baron  v.  GrcU 

served,  that  it   vvaa  loosely  stated,  and  lard,  3  V.  &.  B.  166. 


360  Hearsay  Evidence.  [Chap.   18. 

sons,  concerning  a  material  fact  within  his  knowledge,  is  evi- 
dence against  him,  and  against  all  wlio  are  parties  with  him 
[  *399  ]  in  the  *suit.  (1)  (a)  In  an  action  of  covenant  against  two  de- 
fendants, tlie  aflidavit  of  one  of  them  was  held  to  be  evi- 
dence against  both.  (2)  But  unless  there  be  a  joint  interest  in 
the  decii^ion,  the  admission  of  one  defendant  will  not  be  re- 
ceivable against  a  co-defendant.  (3)  In  actions  of  tort,  the  ad- 
mission of  one  co-defendant  will  not  affect  another  co-defend- 
ant. (4)  The  rule  is  clear  against  the  reception  of  such  evi- 
dence, in  the  case  of  persons  jointly  indicted.  (5) 

In  an  action  against  persons  as  partners,  the  j)artnership  be- 
ing first  proved,  an  admission  by  one  of  the  defendants  is  ad- 
Bvpariner  missiblc  agaiust  all.  (G)  (i)     Thus,   in  an  action  by  several 
suit.  partners  against  the  defendant  for  the   non-performance  of  an 

agreement,  a  declaration  by  one  of  the  partners  suing,  that  the 
goods  to  which  the  agreement  related,  were  his  separate  prop- 
erty, is  evidence  against  all  the  plaintiffs  suing  as  npon  a  joint 
contract.  (7)  An  admission  by  one  defendant,  of  his  partner- 
ship with  the  co-defendants,  who  were  sued  with  him  as  ac- 
ceptors of  a  bill  of  exchange,  and  who  had  been  outlawed, 

(1)  11  East,  589.  Tindal,  in  Daniells  v.  Potter,  1  M.  &  M. 

(2)  Vicary's  case,  Gilb.  Ev.  51.  502.      Vide  supra,  p.  215. 

(3)  This  has  been  lield  with  respect  (5)  By  Lord  Kenyon,  in  Grant  v. 
to  the  answers  of  co-defendants,  on  the  ,Taci<son,  Peake,  204.  Vide  infra,  con- 
ground,  that  if  it  were  allowed,  a  plain-  fessions.  And  supra,  91,  as  to  declara- 
tilf  might   make  one  of  iiis  friends  a  ile-  tions  part  of  the  res  gestae. 

fendant.  Wych  v.  Meale,  3  P.  Wins.  (0)  Nicholls  v.  Dowding  and  Kemp, 
311.    12  Yes.  361.  1  Starkie,  N.  P.  C.  81.  Grant  t).  Jackson, 

(4)  The  lax  expressions  of  Lord  El-     Peake,  204. 

lenborough,    in    Rex  v.    Hardwick,    11  (7)  Lucas  and  others  r.  De  la  Cour,  1 

East,  585,  are  qualified  by  Chief  Justice     Rlaule  &  Selw.  249. 


(a)  See  Lockwood  v.  Smith,  5  Day,  300. 

An  admission  by  a  party  to  the  record,  is  evidence  ajrainst  liim  who  makes 
it;  and  where  there  are  partners,  against  them  also,  but  not  ag^ainst  others 
who  happen  to  be  Joined  as  parties  to  the  suit.  4  Cowen,  483 ;  5  Mon.  R. 
511 ;  17  Mass,  227.  One  tenant  in  common  cannot  admit  away  the  rights 
of  others.  Dan  v.  Brown,  4  Con.  483.  If  an  ejectment  is  brought  by  ten- 
ants in  common,  the  plaintiff  may  give  in  evidence  the  separate  titles  of  the 
several  lessors  to  separate  parts  of  the  premises,  and  recover  accordingly. 
12  J.  R.  185.  The  cases  which  speak  of  the  admission  as  proper  evidence, 
will  be  found  to  have  reference  to  a  sole  plaintiff  or  defendant.  4  Cowen, 
492. 

{b)  See  ante  p.  381,  note.  The  declarations  or  admissions  of  one  defend- 
ant, that  he  is  a  partner,  cannot  be  used  to  establish  the  fact  of  partnership 
against  another.     Whitney  v.  Ferris,  10  J.  R.  66—2  Hall,  357. 

In  an  action  between  partners  to  settle  and  adjust  the  partnership  con- 
cerns inter  se,  each  partner  has  necessarily  an  interest  adverse  to  the  others, 
and  the  answer  of  one  cannot  be  given  in  evidence  to  increase  the  liability 
of  another;  as  he  would  thereby  diminish  his  own  liability,  or  increase  his 
claim  on  the  common  fund.  The  plaintiff  in  such  case  is  bound  to  prove 
his  bill  by  other  evidence  than  that  of  the  admission  of  one  of  the  defend- 
ants. Chapin  v.  Coleman,  et  al  11  Pick.  338.  See  Woodcock  v.  Bennet,  1 
Cowen,  743. 


Sect.   l.J  Of  Admisaions.  361 

has  been  received  as  proof  against  him  of  a  joint  promise  by 
alL  (8)  [a) 

The  rule  with  regard  to  the  admission  of  partners  is  not  %  partner 
confined  to  cases,  where  they  are  parlies  to  the  same  suit.  "°  ^f^^y- 
The  admission  of  a  partner,  though  not  a  party  to  a  suit,  is 
evidence  against  another  partner,  who  is  sued  as  to  joint  con- 
tracts during  the  partnership ;  and  this,  whether  the  admis- 
sion be  made  before  tlie  determination  of  the  partnership  or 
*aftcrwards.  (1)(^)  But  the  statement  of  one,  who  has  been  L  *400] 

(8)  Sangster  V.  Mazarredo  and  others,  1  Taunt.  104.  Ilodenpyl  v.  Vingerhood, 

1  Starkie,  N.  P.  C.  161.  Chitty  on  Bills,  361,  admission  of  an 

(1)    Wood    V.    Braddock,    1    Taunt,  ncceptance  by  a  partner.     Henderson  v. 

104.     In  Graul  v.  Jackson,  Peake,  203,  Wild,  2  Camp.  562,  fraudulent  receipts 

the  ansiver  of  a  partner  against  whom  a  of  a  partner.     And  see,  liooih  v.  .launce, 

no//e  ^irose^tiihad  been  entered  was  re-  7  Price,  1!*8.     Holme    v.    Green,    1  St. 

ceived  as    an  admission    against  his  co-  488.     EIHs   v.    Watson,    2  St.   453,  1 

partners.     And  see    Thwaitea  v.   Rich-  Esp.  29.   2  Esp.  608.  Bust  v.  Palmer,  & 

ardson,  Peake,  16,  where  Loid  Kenyon  Esp.  145.  Sangster   v.  Marraredo,  1  St. 

thought  tJiat  the  admission  of  a  party  not  161,    admission   by  partner  of  partner- 

a  partner  to  the  suit  was  not    receivable  ship, 
in  evidence.     Pelerick  v.  Turner,  cited 


{a)  See  Tuttle  v.  Cooper,  5  Pick.  414 ;  Robbins  v.  Willard,  6  id.  464. 

Where  a  deed  is  e.xecuted  by  one  of  tiie  partners  in  the  name  of  the  firm 
■\vitliout  authority  so  to  do  by  deed  ;  the  authority  to  e.xecute,  or  the  consent 
and  ratification  by  the  other  partner,  may  be  interred  from  the  partnership 
itself,  and  from  the  conduct  of  the  co-partner,  implyincf  his  consent  to  tlie 
execution.     Gram  r.  Seton  and  Bunker,  I  Hall  202.     See  11  Pick.  406. 

The  acts  and  sayings  of  one  of  the  principal  co-partners  of  a  manufac- 
turing' company,  were  held  to  be  co.mpetent  to  prove  the  authority  of  an 
agent  of  the  company  to  sign  notes-  in  belialf  of  the  company.  Odiorne  v. 
Maxcy,  15  Mass.  3L>. 

In  an  action  between  partners  to  settle  and  adjust  the  partnership  con- 
cerns inter  se,  each  partner  has  necessarily  an  interest  adverse  to  the  others, 
and  the  answer  of  one  cannot  be  given  in  evidence  to  increase  the  liability 
of  another;  as  he  would  thereby  diminish  his  own  liability,  or  increase  his 
claim  on  the  common  fund.  Per  Wilde,  .f.  1 1  Pick.  338.  In  tliat  case,  the 
bill  was  against  three  partners  ;  one  of  whom  denied  in  his  answer  that  he 
was  a  partner;  and  held,  that  his  answer  was  not  admissible  to  charge  him: 
— The  second  admitted  that  he  was  a  partner,  but  denied  owing  the  firm  a 
balance ;  and  the  court  held,  that  the  answer  of  a  partner  was  not  admissi- 
ble to  prove  the  indebtedness  of  co-partner.  "The  principle  would  not  ap- 
ply if  the  plaintiff  was  interested  in  one  third  of  the  partnership  property, 
and  the  three  defendants  were  jointly  interested  in  tlie  other  two  thirds,  as 
charged  in  the  bill.  But  all  the  defendants  deny  that  such  were  the  terms 
of  the  partnership.  The  plaintiff  therefore  is  bound  to  prove  his  bill  by- 
other  evidence  than  that  of  the  admission  of  one  of  the  defendants.  Such 
an  admission  would  not  bind  the  otiier  defendants.  See  Woodcock  v.  Ben- 
nett, 1  Cowen,  743. 

{!))  See  Ilackley  v.  Patrick,  .3  ,T.  R.  356,  which  was  decided  in  the  same 
year  with  Wood  v.  Braddick  in  the  C.  B.  in  England  ;  and  also  Waiden  v. 
Sherburne,  15  id.  40!),  where  it  is  held,  that  one  partner  cannot  bind  his  co- 
partner by  admitting  an  account  after  a  dissolution  of  the  partnership.  Other 
cases  arc  to  the  same  effect.  See!)  Cowcii,  57  ;  7  id.  ().50.  Owings  v.  Low, 
5G.  iSi.I.  134—5;  Shelton  ?;.  Cocke,  3  JVIiimf.  lill  ;  (i  id.  I'Jl.  Although 
the  acknowledgment  alter  a  dissolution  is  not  admissible  to  create  a  debt ; 
yet  the  acknowledgment  of  one  partner  will  bind  his  co-partner  from  avail- 


Part-owner 


instrument. 


362  Hearsay  Evidence.  [Ch.   18. 

admitted  into  partnership  subsequently  to  the  transaction  in 
question,  is  clearly  not  admissible  in  evidence  as  to  such  an- 
tecedent transaction.  (2)  An  admission  by  a  part  owner  of  a 
ship,  upon  a  subject  of  co-partnership,  is  not  evidence  against 
another  part  owner.  (3) 
Parties  to  In  }Vhitcomb  V.  Whitmgj  (A)  which  was  an  action  on  a 
joint  and  several  promissory  note,  given  by  the  defendant  and 
others,  to  which  action  the  defendant  pleaded  the  general  is- 
sue and  the  statute  of  the  limitations,  the  Court  of  King's 
Bench  determined,  that  proof  of  payment  of  interest  and  part 
of  the  principal  within  six  years,  by  one  of  the  others,  who 
was  not  sued,  would  take  the  case  out  of  the  statute.  Lord 
Mansfield  said,  "  payment  by  one  is  payment  by  all,  the  one 
acting  virtually  as  agent  for  the  rest ;  and  in  the  same  manner 
an  admission  by  one  is  an  admission  by  all."  Ditferent  opin- 
ions have  been  expressed  respecting  the  propriety  of  the  deci- 
sion in  this  case :  but  the  doctrine  contained  in  it  appears  to 
be  now  clearly  established,  though  it  is  only  an  authority  for 
cases,  where  the  admissions  are  made  by  a  party  originally  li- 
able upon  the  instrument.  (5)  (a) 

(2)  Catt  V.  Howard,  3  Stark.  C.  5.  Brandratn  v.  Wharton,  IB.  &  A.  470, 
Pritchard  V.  Draper,  1  Russ.  &  Myl.  where  the  acknowledgcnent  was  not  ex- 
191,  admission  after  the  dissolution  of  press,  and  where  Jaci<son  «.  Fairbank,  2 
partnership  to  prove  payments  made  af-  II.  B.  340,  was  doubted,  on  the  ground 
ter  such  dissolution.  that  the    admission   was    not  made  by  a 

(3)  Jaggers  v.  Binnings,  1  Stark.  C.  person  liable  to  contribute,  see  Pittam  v. 
64,  Foster,  1  B.  &  C.  248.     In  Gray  v.  Pal- 

(4)12  Dougl.  661.  mer,  1  Esp.  135,  it  was  held,  that  where 
(5)  In  Parham  v.  Raynal,  2  Bing.  the  plainliti"  declared  against  several  de- 
306,  where  the  admission  was  used  fendants  on  a  joint  and  several  note,  and 
against  a  surety,  Whitcomb  v.  Whiting  the  defendants  severed  in  their  pleas, 
was  confirmed.  In  Burleigh  v.  Stott,  S  and  one  of  them  by  his  plea  admitted 
B.  &  C.  41,  Whitcomb  V.  Whiting,  and  the  handwriting  of  the  note,  the  hand- 
Jackson  V.  Fairbank  were  confirmed,  writing  must  nevertheless  be  proved 
and  see  Chippindale  v.  Thurston,  M.  &  against  the  other  defendants.  But  this 
M.  411.  In  the  previous  case  of  Atkins  case  was  apparently  decided  on  the 
r.  Tredgold,  2  B.  &  C.  29,  it  was  doubt-  ground,  that  an  admission  in  one  plea 
ed,  and  was  held  at  all  events  not  to  ap-  cannot  be  used  to  disprove  another  plea, 
ply  to  persons  liable  alieno  jure,  and  After  the  death  of  one  maker  of  a  joint 
see   Rullock   v.  Dunn,  R.    &   M.    416.  and  several   promissory    note  signed  by 


ing  himself  of  the  statute  of  limitations.  Patterson  v.  Choate,  7  Wend.  414. 
One  partner  may  also  after  the  dissolution  of  the  partnership  liquidate  a  pre- 
vious account. 

Wiiatever  vacillation  may  have  existed  elsewhere,  no  conflicting'  opinion 
can  be  found  in  Massachusetts  or  Maine.  Greenleaf  v.  Q,uincy,  3  Fairf  R. 
11  ;  Cady  v.  Shepherd,  11  Pick.  400,  which  uphold  the  doctrine  of  the  lead- 
in"-  caseof  Wood  v.  Braddock,  cited  in  the  text.  But  to  lay  tlie  foundation 
for  this  testimony,  consistently  with  the  principles  upon  which  it  is  received, 
the  existence  of  the  debt  before  the  dissolution,  should  be  proved  by  other 
testimony.  That  being  done,  the  admissions  of  one  party  afterwards  may 
be  received  to  defeat  the  bar,  arising  from  the  statute  of  limitations.  By 
Weston,  C.  J.  3  Fairf.  11.     See  5  Pick.  414. 

(a)  The  payment  of  annual  interest  by  a  joint  maker  of  a  promissory  note, 
was  held  to  be  sufficient  proof  of  the  acknowledgment,  even  as  respects  a 


Sect.   l.J  Of  Admissions.  SG3 

*We  proceed  next  to  consider  tlie  subject  of  admissions  by  a-  A'''"'^ 

^lonsbv 

gents.  Such  admissions  appear  to  be  liable  to  greater  objections  agents. 
than  the  admissions  of  the  parties  themselves.  Chief  Justice  [  *401  ] 
Tindal  has  observed.  (1)  '•  It  is  dangerous  to  open  the  door  to 
declarations  of  agents,  beyond  what  the  cases  have  already 
done.  The  declaration  itself  is  evidence  against  the  princi- 
pal, though  not  given  on  oath  ;  it  is  made  in  his  absence, 
when  he  has  no  opportunity  to  dispute  or  correct  it  by  any 
observation  or  by  any  question  put  to  the  agent,  and  it  is  fre- 
quently brought  before  the  Court  and  jury  after  a  long  inter- 
val of  time.  It  is  liable  therefore  to  suspicion  originally,  from, 
carelessness  or  misapprehension  in  the  original  hearer  ;  and  to 
still  further  suspicion  from  the  faithlessness  of  memory  in  the 
reporter,  and  from  the  facility  with  which  he  may  give  an  un- 
true account.  Evidence  therefore  of  such  a  nature  ought  al- 
ways to  be  kept  within  the  strictest  rules,  to  which  the  cases 
have  confined  it."  There  is  less  necessity  for  resorting  to 
such  evidence  in  the  case  of  living  agents,  than  where  proof 
is  given  of  the  admissions  of  parties,  who  may  refuse  to  be 
examined  ;  and  perhaps  the  admissions  of  agents  may  be  con- 
sidered not  so  likely,  as  those  of  the  parties,  to  contain  an  ac- 
curate and  complete  statement  of  circumstances. 

Numerous  questions  have  arisen  respecting  the  point,  how 
*far  the  admissions  of  agents  may  affect  their  principals.  [  *'a02  ] 
The  statement  or  representation  of  an  agent,  at  the  time  of  a 
transaction  which  is  within  the  scope  of  his  authority,  is  evi- 
dence against  the  principal  himself,  in  consequence  of  the  le- 
gal relation  between  principal  and  agent.  It  is  in  the  nature  of 
original  evidence  and  not  of  hearsay,  the  representation  or 
statement  of  the  agent  in  such  cases  being  the  ultimate  fact 
to  be  proved,  and  not  an  admission  of  some  other  fact.  Thus, 
what  an  agent  says  at  the  time  of  a  sale,  which  he  is  employ- 
ed to  make,  is  evidence  as  part  of  the  transaction   of  selling  • 

two,  a  payment  upon  it  by  the  executor  B.  &  C    149.     Holme   v.  Green,  1  St. 

of  the  deceased  party  will    not  take  the  C.  488.     In  Maunderra  v.  Keeve,  2  St. 

debt  out  of  the  statute  as  against  the  sur-  Ev.  484,  n.,  payments  made  by  a  joint 

vivor.    Slater   v.    Lawson,  1    B.    &  Ad.  maker  of  a  note,  wiio  had  suffered  judg- 

396.     See  9    Geo.    4  c.    14,   as  to  new  ment  by  default,  were  lieldtotake  a  case 

promises  by  joint  contractors,  executors,  out  of  the   statute,  on    the   authority  of 

or  administrators.     Halliday  «.  Ward,  3  Burleigh  v.  Stolt,  st/pra. 

Camp.  32.     Mantstephen   v.   Brooke,  3  (I)   In  Garth  v.  Howard,  S  Bing.  453. 
B.  &,   A.  141.     Clarke  v.  Hougham,  2 


surety.  Si^Tourney  v.  Drury,  14  Pick.  3S7.  In  the  case  of  Cambridge  v. 
Ilobart.  ]0  id.  '^'.i'i,  Uio  court  make  a  distinction  between  an  admission  nindc 
by  a  sole  debtor  and  an  admission  made  by  one  of  several  debtors  ;  in  the 
latter  case,  mere  acknowledgment  by  one,  that  lie  presumed  tiie  debt  wa* 
not  paid,  was  not  sudicieiit.  And  in  tlie  case  of  Exeter  Bunk  v.  Sullivan,  (>• 
N.  H.  R.  119,  it  was  decided,  tliat  a  payment  by  one  joint  debtor,  docs  not 
take  a  case  out  of  the  statute  of  limitations  as  to  another. 


364 


HcarsuT/  Evidence. 


[Ch.  18. 


Authority 
to  admit, 
not  infer- 
red from 
ag-eney 
alone. 


and  ill  order  to  prove  what  was  said,  it  cannot  be  necessary, 
that  the  agent  himself  should  be  called,  (a)  But  where  an 
agent  has  said  or  written  any  thing  relative  to  a  transaction 
which  is  past  and  completed,  the  question  of  the  admissibility 
of  the  agent's  declaration,  without  calling  the  agent,  depends 
on  the  point  whether  the  making  of  such  a  statement  v/as 
within  the  scope  of  the  agent's  authority.  (1)  (b) 

Notwithstanding  some  vacillation  of  the  law  upon  this  sub- 
ject, (2)  it  appears  to  be  now  settled,  that  an  authority  to 
make  an  admission  is  not  necessarily  to  be  implied  from  an 
authority  previously  given  in  respect  of  the  matter,  to   which 


(1)  See  the  judgment  of  Sir  W.  Grant, 
Master  of  the  Rolls,  in  Fairlie  v.  Hast- 
ings, 10  Ves.  127.  Kahl  v.  Johnson,  4 
Taunt.  565.  Langhorn  v.  Alinut,  4 
Taunt.  511.  Helyarr.  Hawke,  5  Esp. 
74.  Betham  v.  13onson  Gow,  45.  Al- 
exander V.  Gibson,  2  Camp.  555.  Irv- 
ing V.  Motley,  7  Bing.  553.  Peyton  v. 
Governors  of  St.  Thomas's  Hospital,  9 

B.  &  r.  725.  Prideaux  v.  Collier,  2 
Stark.  C.  57.  Drake  v.  Marryat,  1  B.  & 

C.  473.  Peto  V.  Hague,  5  Esp.  134. 
Shumack  v.  Lock,  10  B.  Moore,  39. 
Powell  r.  Hodgetts,  2  C.  &  P.  432. 
Declarations  of  an  agent  employed  to 
imprison  another.  Peyton  v.  Gover- 
nors of  St.  Thomas's  Hospital,  admis- 
sion by  surveyor  of  corporation,  3  C.  & 
P.  363.  Irving  v.  Motley,  7  lling.  550. 
Hazard  v.  Treadwell,  1  Str.  506.  Shu- 
mack  V.    Lock,  10    B.  Moore,  39.     In 


Coates  V.  Bainbridge,  5  Bing.  58,  the 
letters  of  the  agent  were  received,  be- 
cause adopted  by  the  answers  of  the  prin- 
cipal. 

(2)  See  Biggs  v.  Lawrence,  S  T.  R. 
454,  where  it  was  held,  that  if  A.  order- 
ed goods  of  B.  to  be  delivered  to  C,  an 
acknowledgtnent  of  the  receipt  by  0. 
was  evidence  against  A. ;  it  was  so  held 
at  7iisi  prills,  by  Buller,  J.  The  case 
was  afterwards  decided  upon  a  dilFerent 
ground,  the  illegality  of  the  contract. 
The  marginal  note  in  3  T.  R.  is  incor- 
rect, for  the  agent  was  not  employed  to 
buy  goods.  As  to  which,  see  observa- 
tions of  counsel  in  Bauerman  v.  Radeni- 
us,  7  T.  R.  665,  and  by  Lord  Kenyon, 
quoted  in  10  Ves.  12S.  Doug.  751.  Ev- 
ans V.  Bealtie,  5  Esp.  26.  Bacon  v. 
Chesney,  1  St.  C.  192. 


(ff)  Whatever  an  agent  says,  does  or  writes,  in  the  rnakinrr  of  a  contract, 
is  admissible  in  evidence  against  the  principal.  For  example,  the  declara- 
tion of  a  servant  employed  to  sell  a  horse,  is  evidence  to  charge  the  master 
with  warranty,  if  made  at  the  time  of  sale.  Hough  v.  Doyle,  4  Rawle,  291 ; 
6  Cowen,  90 ;  7  id.  752.  It  must  clearly  appear  that  it  was  said,  done  or 
ivritten  at  the  time.  An  agent  is  authorized  to  act;  therefore  his  acts,  ex- 
plained  by  his  declarations  during  the  time  of  action,  are  obligatory  on  his 
principal,  but  he  has  no  authority  to  inake  confessions  after  he  has  acted, 
and  therefore  his  principal  is  not  bound  by  such  confessions.  4  S.&  E.  321 ; 
10.LR.  225;  2  Wh.  R.  380. 

[h)  The  rule  that  facts  are  to  be  proved  on  oath,  extends  to  agents,  as  well 
as  to  other  persons.  Therefore,  representations  made  by  one  witliout  au- 
thority to  act,  and  to  a  person  also  with  whom  his  principal  has  authorized 
no  contract  to  be  made,  are  not  admissible.  7  S.  &  R.  106.  So.  if  the 
agent  exceeds  his  authority,  his  principal  is  not  bound.  Gibson  v.  Colt,  7 
J.  R.  3!)0 ;  5  id.  58 ;  9  Mass.  272 ;  7  id.  23  ;  1  Blackf  213. 

A  receipt  of  the  premium  by  an  agent  of  an  insurance  company  will  bind 
the  latter,  although  no  policy  has  been  executed  ;  and  the  power  of  the 
agent  may  be  inferred  from  hid  own  acts  as  Avell  as  from  those  of  the  prin- 
cipal.   4  Cowen,  645. 

See  the  case  of  Wyman  v.  Hallowell  &  Aug.  Bank,  14  Mass.  62;  id.  180 ; 
17  id.  97;  id.  29;  id.  505,  as  to  the  authority  of  the  agents  and  officers  of 
banking  companies  to  bind  their  principals.  The  case  of  VVilliams  v.  Mitch- 
ell, 17  Mass.  98,  decides  that  tiie  principal  is  holden  for  the  payment  of 
goods  obtained  by  a  general  agent  by  means  of  a  forged  order. 


Sect.  1.]  0/  Admissions.  365 

the  admission  *relates.  Thus,  in  Fairlie  v.  Hastings.  ( 1 )  [  *403  ] 
where  the  fact  sought  to  be  estabhshed  was,  that  a  bond  had 
been  executed  by  the  defendant  to  the  plaintiff,  which  the 
defendant  had  got  possession  of,  the  Master  of  the 
Rolls  refused  to  admit,  as  evidence  of  tliis  fact,  the 
declaration  of  the  defendant's  agent,  who  had  been 
employed  to  keep  the  bond  for  the  plaintiff's  benefit, 
and  who,  on  it's  being  demanded  by  the  plaintiff,  informed 
him  that  it  had  been  delivered  to  the  defendant.  The  declar- 
ation of  a  servant  employed  to  sell  a  horse  is  evidence  to 
charge  the  master  with  a  warranty,  if  made  at  the  time  of 
sale  ;  but  the  servant's  admission  of  a  warranty,  made  at  any 
other  time,  is  not  receivable.  (2)  {a) 

In  Garth  v.  Howard^  (3)  it  was  held  that  under  the  cir- 
cumstances of  the  case,  the  declarations  of  a  pawnbroker's 
shopman  were  not  admissible  against  his  employer.  It  was 
said  by  Chief  Justice  Tindal,  that  if  the  transaction,  out  of 
which  the  suit  arose,  had  been  one  in  the  ordinary  trade  or 
business  of  the  pawnbroker,  a  declaration  of  the  shopman, 
that  his  master  had  received  goods,  might  probably  have 
been  evidence  against  the  master,  as  it  might  be  held  within 
the  scope  of  such  agent's  authority  to  give  an  answer  to  such 
an  inquiry,  made  by  any  person  interested  in  the  goods  dcpos- 

(1)  10  Ves.    128.     This  is  referred  to  rule  with  respect  to    admissions  tliat  they 

by  Tindal,  C.    J.,  in  Garth  v.  Howard,  are  only  receivable  when  there  is  ;in  au- 

8  Bing.  452,  as  being  the  leading  case  on  thority   t»  make    them.     Garth  v.  IIow- 

the   subject.     The    Master  of  the  Rolls  ard,  8    Bing.   452.       Maesters  v.  Abra- 

there  lays    down    the  rule  respecting  the  ham,  1  Esp.    375.   Helynr   t-.  Ilawke,  5 

statements  of  agents  to  be,  that  they  are  Esp.  74. 

inadmissible,  unless   made  by  them  eith-         (2)  Ilelyer  i'.  HawUe,  5  Esp.  72.  See 

er  at  the  time  of  their  making  an  agree-  Peto  v.  Hague,  5  Esp.  1.^4, 
ment  about  which  they  are  employed,  or         (3)    8   Bing.    451,    see    Shuntiack    v. 

in  acting  within  the  scope  tf  their  author-  Lock,  10  B.  Moore,  39. 
ity.     But   it  seems  to  be  a  more  simple 


(a)  Haven  v.  Brown,  7  Greenl.  421  ;  4  Wash.  C  C.  R.  500  ;  2  Wheat.  380. 
Where  the  plaintiff  in  his  declaration  admits  one  to  be  his  agent  in  a  cer- 
tain transaction,  he  is  bound  by  his  admission.  Brown  v.  Babcock,  3  Mass. 
31.  Ratification  of  an  agent's  acts  is  equivalent  to  previous  authority.  13 
id.  381 ;  id.  3G3. 

When  the  principal  appears  to  have  given  unlimited  authority  to  an  agent 
to  contract  for  him,  by  signing  bills  of  exchange  or  other  commercial  paper, 
he  shall  be  bound  in  a  particular  contract  which  is  made  on  the  faith  of  au- 
thority so  given.  14  Mass.  G2.  In  that  case,  a  new  bank  was  incorporated 
by  the  same  name  of  the  old  ;  and  the  name  being  the  same  and  the  officers 
the  same,  they  put  into  circulation  notes  of  the  old  bank,  saying  there  was 
no  difference.  Held,  that  the  new  corporation  were  not  holden  for  the  pay- 
ment of  such  notes. 

A  minister  of  the  law  to  execute  the  orders  of  the  court,  such  as  a  mar- 
shall,  cannot  charge  the  owner  of  the  property  sold,  so  as  to  render  him 
personally  liable,  while  he  acts  witliin  the  scope  of  his  authority;  and  tho 
rule  mvcal  emptor,  applies  generally,  from  the  nature  of  the  transaction,  to 
all  judicial  sales.    9  Wlicat.  GIG. 


26ij  Hearsay  Evidence.  [Ch.  18. 

ited  with  tlic  pawnbroker.  But  the  transaction  appeared  to 
have  been  a  transaction  unconnected  with  the  business  of  the 
shop,  and  tlicre  was  no  evidence  to  shew  the  agency  of  the 
shopman  in  such  transactions. 

In  the  case  of  Maestcrs  v.  Jlhrahani,  (4)  Lord  Kenyon,  C. 
[  *401  J  J.,  refused  to  admit  an  agent's  letter  as  evidence  of  an  Agree- 
ment against  the  principal,  holding,  that  the  agent  himself 
ought  to  be  examined.  "If  the  agreement,"  said  the  Master 
of  the  Rolls,  (1)  adverting  to  this  case,  "was  contained  in 
the  letter,  I  should  have  thought  it  suthcient  to  prove  that  the 
letter  was  written  by  the  agent :  but  if  the  letter  was  offered 
as  proof  of  the  contents  of  a  pre-existing  agreement,  then  it 
was  properly  rejected."  And  the  Court  of  Common  Pleas 
has  determined,  after  much  argument,  in  the  cases  of  KaJd  v. 
Janson.  (2)  and  Langhorn  v.  Allnut,  (3)  that  the  letters  of 
an  agent  abroad  to  his  principal,  containing  a  narrative  of  the 
traiisaction  in  which  he  had  been  employed,  were  not  admis- 
sible in  evidence  against  the  principal,  as  the  mere  representa- 
tion of  the  agent.  The  general  rule  on  the  subject  was  there 
fully  recognised  and  confirmed.  "  When  it  is  proved,"  said 
Mr.  Justice  Gibbs,  that  A.  is  agent  to  B.,  whatever  A.  does 
or  says,  or  writes,  in  the  making  of  a  contract  as  agent  of  B., 
is  admissible  in  evidence,  because  it  is  part  of  the  contract, 
which  he  makes  for  B.,  and  which  therefore  binds  him,  but  it 
is  not  admissible  as  the  agent's  account  of  what  passed."  (4) 
When  the  declarations  of  an  agent  are  admitted  in  evidence, 
they  are  received  not  for  the  purpose  of  establishing  the  truth 
of  the  fact  stated,  but  as  representations,  by  which  the  princi- 
pal is  as  much  bound  as  if  he  had  made  them  himself,  and 
which  are  equally  binding  whether  the  fact  stated  be  true  or 
false. 
Express  But  an  agent's  admission  will  be  binding  on  his  principal, 

ed  autilori.  whcrc  the  making  of  the  admission  is  within  the  scope  of  the 
'y-  agent's  authority  ;  and  the  authority  of  an  agent  to  make  ad- 

mission may  be  either  express,  or  implied  from  circum- 
stances. (5) (a) 

(4)  1  Eisp.'N.  P.  C.  375.  would  seem  that  the  letters   were  con- 

(1)  10  Ves.  127.  necled  with  and  necessary  to  tlie  explan- 

(2)  4  Taunt.  565.  ation  ot  the  defendant's  own  letters. 

(3)  4  Taunt.  511.  Reyner  v.  Pearson,  (5)  Many  of  the  cases  respecting  what 
4  Taunt.  663.  S.  P.  is   sufficient   proof  of  agency,    whether 

(4)  4  Taunt.  519,  where  an  agent's  they  be  cases  of  express  delegation,  the 
letters  were  adopted  and  acted  on  by  his  recognition  of  former  acts,  course  of  bus- 
principal,  that  circumstance  was  consid-  iness,  or  relative  situation  of  the  parties, 
ered  as  shewing  that  the  letters  were  acts  will  be  found  useful  upon  the  question 
within  the  scope  of  the  agent's  authority,  what  is  sufficient  authority  in  an  agent  to 
Coates  V.   Bainbridge,    5   Bing.   62.     It  make  admissions.      See  particulnrly  the 

(a)  A  person  found  in  a  store  or  merchant's  counting-house,  and  appearing: 
to  be  entrusted  with  the  business  there,  is  authorized  to  receive  payment 


Sect.   ].] 


Of  Admissions. 


367 


*Thus  if  one  party  refers  another  on  a  disputed  fact  to  a 
third  person  as  authorized  to  answer  for  him,  ( 1 )  or  employs 
an  agent  to  make  certain  propositions  respecting  a  transaction 
between  himself  and  another,  (2)  he  is  bound  by  what  his 
agent  says  or  does  within  the  scope  of  his  authority,  as  much 
as  if  it  had  been  done  or  said  by  himself.  For  example,  in 
an  action  for  goods  sold  and  delivered,  where  it  appeared  at 
the  trial,  that  in  a  conversation  between  the  plaintiff  and  de- 
fendant, the  former  asserted  that  he  had  delivered  the  goods 
by  one  C,  and  the  defendant  replied,  "  If  C  will  say,  he  did 
deliver  the  goods,  I  will  pay  for  them,"  the  plaintiff  was  al- 
lowed to  give  in  evidence  C.'s  answer  respecting  the  matter 
referred  to  him.  (3)  {a) 

In  the  case  of  Fahrigas  v.  Mosttjn,  a  point  arose,  which 
may    serve    as    another   example    to     illustrate     the     rule 


Express 
autlicrii  V. 

[  *405  ] 


cases  respecting  proof  of  a  general  au- 
thority, inferred  rroni  recognition  of  an 
agent's  acts  in  former  instances.  Neai  v. 
Irving,  1  Esp.  61.  Watkins  v.  Vince,  2 
St.  C.  368.  Prescottr.  Fiinn,  9  Bing  19. 
Paley  on  Principal  and  Agent,  201. 
Courleen  v.  Touse,  1  Catnp.  43,  n. 
Whitehead  v.  Tucket,  15  East,  400. 
Doe  V.  E.  L.  W.  W.  Co.,  ."M.  &  M.  149, 
Tyler  v.  Duke  of  Leeds,  2  St.  C.  218. 
Fenn  v.  Harrison,  3  T.  R.  75.  Betham  v. 
Benson,  Gow.  45.  Coates  v.  Bainbridge, 
5  Bing.  58.  Evans  v.  Beattie,  5  Esp. 
26.  Bacon  v.  Chesney,  1  St.  192.  Shu- 
mack  V.  Locke,  10  B.  Moore,  39.  Garth 
V.  Howard,  5  C.  ^  P.  346.  Stevens  v. 
Thatcher,  peake,  187.  1  D.  &  R.  48. 
Cooke  V.  Maxwell,  2  St.  186.  Hard- 
ing V.  Carter,  Park,  Insur.  4.  Rc.x.  v. 
Almon,  5  Burr,  2686.  Hazard  v  Tread- 
well,  1  Str.  506.  Johnson  v.  Ward,  6 
Esp.  48.  Watkins  v.  Vince,  2  St.  368. 
As  to  proof  of  a  written  power,  see  John- 
son V.  Mason,  1  Esp.  38.  Coore  v.  Call- 
away, ib.  115.  StPglitz  V.  Eggington, 
Holt,  141.  Houghton  v.  Ewbanl<,  4  C. 
88.  A  person  once  proved  to  be  an 
agent  is  presumed  to  continue  in  that  ca- 
pacity, Roberts  v.  Lady  Gresley,  3  C.  & 


Interpreter. 


P.  381.  Particular  examples  of  admis- 
sions by  agents  ;  Richardson  v.  Ander- 
son, 1  Camp.  43,  n.,  an  agent  who  lia.s 
authority  to  subscribe  a  policy,  has  au- 
thority to  sign  an  adjustment.  Peyton  v. 
Governor  of  St.  Thomas's  Hospital,  liie 
admission  of  a  surveyor  to  a  corporation. 
Foote  V.  Hayne,  1  C.  &  P.  547,  the 
plaintitr knew  that  her  father  was  mak- 
ing representations  to  the  defendant  con- 
cerning her;  it  was  held  that  his  letters 
were  evidence  against  her,  though  she 
was  not  answerable  for  particular  expres- 
sions, 

(1)  Daniel  j).  Pitt,    1  Camp.    366 

Lloyd  T.  Willan,  1  Esp.    N.  P.  C.  178. 

(2)  Gainsford  v.  Grammar,  2  Camp. 
9. 

(3)  Daniel  v.  Pitt,  1  Camp.  366.— 
6  Esp.  N.  P-  C.  74.  S.  C.  Williams  v. 
Innes,  1  Camp.  364.  Price  v.  Hollis,  1 
M.  &  S.105.  Brock  v.  Kent,  ib.  n. 
366,     Burt  v.  Palmer,  5  Esp.    N.  P.  C, 

145.  Garnet  v.  Ball,  3  Siark.  N.  P.  C. 
160.  Bretton  r.  Prettiman,  Sir  T.  Raynr). 
153.  Brayne  r.  ^'eale,  3  Lev.  241. 
Hood  V.  Reeve,  C.  &  P.  284,  Godb. 
291.  21  H.  6.  fol.  31,  pi.  17.  3 
Camp.  366.     1  Esp.  178. 


and  payment  to  him  is  evidence  of  payment  to  the  merchant,  althongli  it 
turns  out  that  he  was  not  employed  by  him.     2  C.  &  M.  '304. 

And  where  the  question  was  as  to  the  renewal  of  a  note,  the  court  held, 
that  tiie  trusting  a  clerk  with  the  note  made  liim  an  agent,  and  tiicrefore  his 
sayings  and  doings  wore  matters  of  fact  to  be  laid  before  the  jury.  Tlie 
trusting  him  with  tiie  note,  was  of  itself  sutficicnt  proof  of  his  authority  to 
act  for  them  so  far  as  concerned  that  note.     2  S.  &.  R.  197. 

(a)  See  Turner  v.  Coo,  .5  Conn.  \)3  ;  Fenner  v.  Lewis,  10  J.  R.  38,  where 
it  was  held,  that  where  tlie  declarations  of  the  wife  arc  referred  to  by  tiie 
husband,  as  a  test  of  a  fact,  then  what  she  declares  is  good  evidence  against 
the  husband,  because  she  is  made  a  witness  by  his  consent. 


368  Hearsay  Evidence.  [Oh.   18. 

f  *406  1  ^^^"^^  laid  *down.  (1)  There  a  witness,  who  had  been  em- 
ployed by  the  defendant  to  convey  certain  proposals  to  the 
j)]aintifi',  explained  them  to  him  by  an  interpreter,  from  whom 
also  he  received  the  answer  :  the  question  was,  whether  the 
words  of  the  interpreter  could  be  given  in  evidence  by  the 
witness,  as  the  answer  of  the  plaintiff":  or  whether  the  inter- 
];reter  himself  ouglit  to  be  called,  as  the  witness  understood 
neither  the  questions  put  to  the  plaintiff",  nor  the  answer  made 
by  him.  But  Mr.  Justice  Gould  ruled,  that  the  evidence  of 
the  witness  was  clearly  admissible,  and  sufficient.  Here  the 
interpreter  was  the  accredited  agent  of  the  parties,  acting 
within  the  scope  of  his  authority,  and  in  the  execution  of  his 
agency. 

J"fy-  In  a  case  where  it  was  proved,  that  the  defendant  had  said 

that  if  another  jury  were  called,  and  they  should  find  a  par- 
ticular fact,  he  would  pay  a  sum  of  money,  it  was  held  that 
this  finding  of  the  jury,  coupled  with  the  declaration,  was 
evidence  against  the  defendant,  upon  the  principle  of  the  au- 
thorities which  make  the  declarations  of  persons  referred  to 
equivalent  to  their  own  admissions  ;  for  the  jury  were  to  be 
considered  in  the  nature  of  accredited  agents,  (2) 

Implied  au-       The  admissious  of  an   under-sheriff  are  not  admissible  in 

thonty.  evidence  against  the  sheriff,  unless  they  tend  to  charge  him- 
self where  he  is  the  real  party  in  the  cause  ;  as,  in  an  action 
for  an  escape.  In  an  action  against  the  sheriff"  for  taking  il- 
legal poundage,  declarations  of  the  under-sheriff',  after  he  was 
out  of  office,  were  held  not  to  be  admissible  to  prove,  that  the 
bailiff",  charged  Avith  having  committed  the  extortion,  Avas 
the  sheriff's  authorized  agent.  (3)      Where,  indeed,  the   dec- 

[  *407  ]  larations  of  the  *under-sheriff  accompany  official  acts,  they 
are  in  the  nature  of  original  evidence  ;  (1)  though  the  admis- 
sions of  a  bailiff  or  sheriff's  officer,  where  the  authority  is 
limited  to  the  particular  duties  specified  in  his  warrant,  are 
not  evidence  against  the    sheriff".  (2)      What    a  bailiff"  says 

(1)  11  St.  Tr.  171.  geneal    doctrine    of   Lord    Kenyon    ia 

(2)  Syhray  v.  White,  1  M.  8f  Wei.  Drake  r.  t*yl<es,  as  to  tlie  sberiiJt"  beinjr 
441.  It  does  not  appear  to  have  been  identified  willi  the  under-sherilF  to  ail 
necessary    to    determine    in    the    cases  inlents. 

above    mentioned,    whether    the    party  (1)  Yabsley  i'.  Double,  1  Lord  Raym. 

making  the  reference  would    have    been  190.     Drake  u.  Sykes,    7    T.    R.    117. 

concluded  by  the    result.     In    Lloyd  v.  Kenipland    v.    Macauley,     Peake,     65, 

Willan,  1  E<p.    178,    the    evidence  ap-  where  it  was  considered  that  the  circum- 

pears  to  have  been    thought   conclusive,  stances  of  the  haililf  giving   a    bond   of 

In  Garnet  u.  Ball,  3  St.  ItiO,  it  was  said,  indemnity  which  was  relied  on  in  Yabs- 

thatto  make  such  evidence  conclusive,  it  ley  v.  Double,  with  regard  io  the  under- 

ought  to  be  veiy  clear.     See  Whitehead  sheritT,  did  not  make  u    bailift''s  admis- 

V.  Tattersall,  1  Ad.  Sf  E.  491.     Stevens  sion  receivable. 

15.  Thacker,  Peake  187.     Doe    d.   Mor-  (2)   Drake  ?•.  Sykes,  7  T.  R.    117.— 

ris  V.    Rosser,  3    East,    15.     Hunter   v.  By    Lord    Ellenborough    in     North     v. 

Rice,  15  East,    100.  IMiles,  1  Camp,  389,  that  a  baililF'sgen- 

(3)  Snowball  ?.  Goodricke,  4  B.  Sf  eral  conversation  with  an  indifferent  per- 
Ad.    541.     The   decision   impugns   the  son  is  not   evidence  against  the  sheriff. 


Sect.   1.] 


Of  Admissions. 


8691 


Wife. 


whilst  he  has  a  party  in  custody,  (3)  concerning  the  circum- 
stances of  the  arrest  may  he  admissible  against  the  sheriff  as 
part  of  the  act  for  which  he  is  responsible.  And  it  has  been 
held,  that  the  relation  of  sheriff  and  officer  continues  whilst 
the  writ  is  in  course  of  execution,  and  therefore  that  the  sheriff 
may  be  affected  by  the  officer's  declarations  after  the  return  of 
a  Jieri  facias,  and  before  a  warrant  is  made  for  sale,  so  long 
as  the  goods  are  in  the  hands  of  the  officer,  (4)  In  such  ca- 
ses the  declarations  of  the  officer  are  properly  original  evidence, 
and  not  in  the  nature  of  hearsay  or  admission. 

Though  a  husband  will  not  in  general  be  bound  by  any 
admissions  made  by  his  wife,  even  where  he  is  suing  in  jure 
uxoris,  (5)  {a)  *yet  a  wife's  admissions  will  be  binding  on  the  [  *408  ] 
husband,  if  an  authority  to  make  them  con  be  inferred,  thus  it 
was  held,  in  Gregory  y.  Parker  (1)  that  where  goods  had 
been  furnished  for  the  wife's  accommodation,  while  her  hus^ 
band  occasionally  visited  her,  she  might  be  regarded  as  her 
husband's  agent  respecting  them ;  and  that  her  letters,  con- 
taining an  admission  of  the  price  of  the  goods  being  unpaid, 
were  evidence  to  take  the  case  out  of  the  statute  of  limita- 
tions. The  authority  of  a  wife  to  bind  her  husband  by  her 
admissions  seems  to  have  been  inferred  in  a  more  unobjec- 
tionable manner,    in  ihe  case  of  Paletliorp  v.   Furnish,  (2) 


The  bailiff 's  authority  must    be    proved 
in  every  particular  case,  ib. 

(3)  Bowcher  v.  Galley,  1  Camp.  391, 
n.  In  North  u.  Miles,  1  Camp.  389. 
it  wag  held,  that  what  was  said  by  a 
bailiff,  when  asked  by  the  plaintiff's  at- 
torney before  the  return  of  the  writ,  why 
he  did  not  execute  it,  was  evidence 
against  the  sheriff.  The  action  was  for 
a  false  return  of  non  est  invenlus. — 
Lord  Ellenborough  said,  that  the  con- 
versation must  be  considered  as  part  of 
the  act  touciiing  the  execution  of  the 
writ.  And  he  observed  that  where  a 
thing  is  carried  on  by  one  as  a  quasi 
principal,  what  he  s.iys  in  the  coarse  of 
the  transaction  has  been  held,  on  great 
consideration,  to  be  evidence  against 
tlrose  he  represents.  On  the  subject  of 
the  proof  of  the  bailiff's  authority,  up- 
on which  there  has  been  many  conflict- 
ing decisinn>i,  it  has  been  recently  held 
suliicient  to  prove  an  examined  copy  of 
the  writ  on  which  the  baililF's  name 
was  endorsed,  and  that  a  poison  of  that 
name  actually    executed    the    writ,    and 


tl>at  tlie  course'  of  the  slwriff's  office 
was,  that  the  name  of  the  bailiff  to 
whom  the  warrant  was  granted,  was  usu- 
ally indorsed  on  the  writ.  iScott  v. 
Marshall,  2  Cr.  &  .T.  2.58. 

(4)  Jacobs  V  Humphrey,  2  Cr.  4-  M. 
413.     4  Tyr.  272. 

(5)  Alban  v.  Pritchett,  «  T.  R.  680, 
wife's  receipt  for  wages  earned  by  her, 
not  receivable.  Hill  r.  Hill,2Slr.  1094. 
See  Amin.  1  Str.  527.  KerslaUe  v. 
Shepherd,  Esp.  Dig.  iN.  P.  741.  Denn 
V.  While,  7  Esp.  112.  Wile's  admi:<- 
sion  of  a  trespass,  3  P.  Wms.  238;  Salk. 
350  ;  Vern.  60,  109,  110.  Answer  of 
wife  in  equity. 

(1)  1  Camp.  395.  It  seems  lo  be  a 
strong  decision,  that  the  wife  had  an  au- 
thority to  make  an  admission  years  after 
the  time  when  the  goods  were  furnish- 
ed. 

(2)  2  Esp.  511,  n.  And  see  Clifford 
V.  Hurton,  I  liing.  199.  8  H.  Moore. 
S.  (J.,  where  the  wife  offered  to  settle 
a  demand  for  goods  delivered  at  her 
husband's  shop  in  which  she  served,  and 


(a)  See  2  N.  &  M'Cord,  374  :  The  husband  has  an  intoroKt  in  the  cause, 
and  cannot  be  prejudiced,  by  an  an  act  or  declaration  of  the  wife  ;  wlietlier 
his  right  be  or  be  not  ;it?'c  uxoris^  By  Hosmcr,  C.  J.  5  Conn.  !K3.  See  -i 
Fairf.  If)?. 

47 


370 


Hearsay  Evidence. 


[Ch.  18. 


Guardians. 


where  it  was  proved  that  the  wife  managed  her  husband's 
business,  and  generally  gave  orders  and  paid  for  goods,  (a) 

The  declarations  of  a  guardian  are  not  admissible  in  evi- 
dence against  a  minor  who  sues  by  his  guardian.  (3)  And  the 
infant's  answer  in  Chancery  by  his  guardian  cannot  be  read 
in  evidence  against  the  infant ;  for  the  guardian  is  sworn  and 
not  the  infant,  and  the  guardian  has  not  authority  to  prejudice 
the  infant  by  his  admissions.  (4) 
I  *A(\c\  1  *Wilh  respect  to  admissions  made  by  attorneys,  they  are 
l  -I  considered  as  having  an  implied   authority  to   make   any  ad- 

mission for  the  purpose  of  obviating  the  necessity  of  proving 
any  fact  upon  a  trial  :  as  where  an  attorney  gives  a  formal  ad- 
mission of  the  execution  of  a  deed,  or  of  a  dishonour  of  a 
bill,  or  where  he  makes  propositions  on  behalf  of  his  client. 
But  whatever  an  attorney  may  happen  to  state  in  the  course 
of  conversation  is  not   evidence  in  the  cause.   (1)  With  res- 


AKomies. 


the  business  of  which  she  was  in  the 
liiibit  of  conducting.  In  Emerson  t>. 
Blonden,  1  Esp.  141,  the  wife  agreed 
for  apartments  which  were  occupied  by 
herself  and  her  husband,  and  Lord  Ken- 
yon  received  the  wife's  acknowledg- 
ments as  to  the  amount  of  rent  due. — ■ 
It  would  seem,  that  it  could  not  be  infer- 
red from  the  wife  having  authority  to 
make  the  agreement,  that  she  liad  au- 
thority to  make  the  admission.  In  these 
cases  respecting  a  wife's  agency,  the 
Courts  appear  to  iiave  been  led  away 
from  defining  the  limits  of  her  agency, 
by  considering  the  point  whether  she 
could  be  an  agent  or  not.  See  further 
Anderson  v.  Sanderson,  2  St.  C.  204, 
Holt,  591.  S.  C,  Sir.  527.  Admission 
relating  to  agreement  for  suckling  a  child. 
Willes,  577;  7T.  R.  112;  6  T.  R.  176; 
4  Campb.  70,  92  ;  5  Esp.  145  ;  Str. 
.35.  Petty  r.  Anderson,  .3  Bing.  170. 
Barlow  v.  Bishop,  1  East,  432.  Cotes  v. 
Davis,  1  Camp.  485.  Barker  v.  VVray, 
2  Russ.  Ch.  C.  70.  B.  N.  P.  28.  As 
to  facts  from  which  the  wife's  agency 
may  be  inferred,  see  Palmer  v.  Sells,  3 
l\ev.  &  M.   422. 

(3)  Cowling  r.  Ely,  2  Stark.  C.   366. 


Webb  r.  Smith,  R.  8f  M.  106,  declara- 
tions of  a  prochem  amy  before  action 
brought.  Eggleston  v.  Speke,  3  Mod. 
258.  See  James  r.  Hatfield,  1  Str. 
548. 

(4)  Eccleston  v.  Petty,  Garth.  79. 
Gilb.  Ev.  44.  3  P.  Wms.  237,  n.  E. 
An  answer,  purporting  to  be  the  answer 
of  a  minor  by  his  mother  and  guardian, 
may  be  read  against  the  molher  in  an- 
other cause,  in  which  she  is  defendant  in 
her  own  capacity.  Beasley,  v.  Magralh, 
2  Sch.  &  Lef.  34. 

(1)  Young  r.  Wright,  1  Campb.  141. 
Griffith  r.  Williams,  1  T.  R.  610.  1 
East,  568.  Truslove  v.  Burton,  9  B. 
Rloore,  64.  Goldie  r.  Shuttleworlh,  1 
Campb.  70,  where  it  was  held  that  the 
admission  by  the  attorney,  of  the  execu- 
tion of  a  deed,  did  not  preclude  an  ob- 
jection on  the  ground  of  variance. — 
Milward  v.  Temple,  1  Camp.  375, 
where  it  was  held  that  the  admission  of 
the  handwriting  of  a  person  attesting  a 
deed,  was  tantamount  to  an  admission 
of  the  execution  by  the  defendant. — 
Marshall  c.  Clilt,  4  Campb.  133.  Holt 
V.  Squire,  R.  Sf  M.  282.  That  an  at- 
torney has  an  implied  authority  to  make 


(rt)  When  making  such  declarations  she  was  acting  as  his  agent,  or  her 
declarations  are  referred  to  by  him,  as  a  test  of  a  fact,  then  what  she  declares 
is  good  evidence  against  the  husband,  not  by  reason  of  her  being  his  wife, 
but  because  she  acts  in  pursuance  of  authority  delegated  by  him,  is  made  a 
witness  by  his  consent.  Fenner  v.  Lewis,  10  J.  R.  38 ;  5  Conn.  93 ;  3  Fairf. 
157. 

In  Lawrence  v.  Hunt,  10  Wend.  80,  where  the  wife  hired  out  her  hus- 
band's horse  when  he  was  from  home,  held,  that  the  husband  was  not  en- 
titled to  maintain  trover.  The  court  observe,  that  the  wife  may  rightfully 
exert  the  usual  control  over  the  property  of  the  husband  in  his  absence. 


Sect.  l.J 


Of  Admissions. 


371 


pect  to  the  point  who  is  such  an  attorney  in  the  cause  as  may 
bind  a  party  by  his  admission,  it  is,  in  general,  enough  to 
prove  that  the  person  making  the  admission  is  the  attorney 
upon  the  record  ;  (2)  yet  it  has  been  held,  that  a  letter  writ- 
ten to  a  plaintitfs  attorney  before  action  brought,  by  the  attor- 
ney who  afterwards  appears  in  the  cause  for  the  defendant,  is 
not  evidence  of  a  fact  admitted  therein  without  further  proof, 
that  the  defendant  authorized  the  communication.  (3)  *An  [  *410  ] 
admission  for  the  purpose  of  the  trial  of  a  cause  may  be  used 
upon  a  new  trial.  (1)  (a) 

With  respect  to   admissions  by  counsel,   it  has    been   held,  ^^'  counsel, 
a  special  case,  signed  by  the  counsel   on  both    sides,  for  the 
opinion  of  the  Court  above,  and  stating    facts  proved  at  the 
trial  of  the  cause  is  admissible  as  evidence  of  those  facts  on  a 
new  trial.  (2)     Whether  admissions,  made  by  the  defendant's 


propositions,  either  before  or  after  the 
commencement  of  a  suit,  see  Gains- 
ford  V.  Grammar,  2  Campb.  9.  See  Roe 
V.  Wilkins,  3  Bing.  N.  C.  86,  admission 
by  attorney  that  his  client  claimed  under 
a  particular  deed,  by  way  of  statement. 
In  Young  v.  Wiight,  1  Campb.  141, 
Lord  Ellenborough  says,  "  it  is  clear, 
that  whatever  the  attorney  says  in  the 
course  of  conversation,  is  not  evidence 
in  the  cause  ;  the  witness  had  been  ask- 
ed, whether  he  had  not  been  told  by  the 
attorney  for  the  plaintitT,  that  the  bill, 
■which  was  the  subject  of  the  action, 
was  an  accommodation  bill.  Wilson  r. 
Turner,  1  Taunt.  30.  In  Perkins  v. 
Hawkshaw,  2  St.  240,  Holroyd  J.,  held, 
that  matter  of  conversation  with  an  at- 
torney could  not  be  evidence  against  his 
client  ;  the  conversation  in  question 
amounted  to  an  admission  of  the  signa- 
ture of  the  deed. 

(2)  Marshall  t>.  Cliff,  4  Campb.  133, 
as  to  admissions  by  clerks  of  atlornies, 
which  may  be  given  in  evidence.  Stand- 
age  V.  Creighton,  5  C.  &  P.  406.  Per 
Lord  Tenterden,  in  Taylor  u.  Williams, 
2  B.  &  Ad.  656.  By  agents  of  attor- 
nies,  Truslove  v.  Burton,  9  B.  Moore, 
64.  See  Meyer  r.  Sefton,  2  St.  274, 
letter  of  attorney  with  client's  signature. 

(3)  Wagstafi"  r.  Wilson,  4  B.  4-  Ad. 


339.  And  see  Burghart  v.  Angerstein, 
6  C.  &  P.  693.  In  Marshall  v.  ClilT, 
4  Campb.  133,  the  attorney's  letter  reli- 
ed upon  to  prove  the  joint-ownership, 
contained  an  undertaking  to  appear  for 
them,  which  was  a  step  in  the  cause. — 
In  Roberts  v.  Lady  Gresley,  3  C.  &  P. 
380,  the  party  whose  letter  was  produc- 
ed had  already  acted  as  agent  for  the 
defendant.  If  an  attorney  leaves  the 
conduct  of  a  cause  to  his  clerk,  what 
the  latter  does  therein  binds  the  parly. — 
Per  Lord  Tenterden,  in  Taylor  r.  \V' ill- 
ianis,  2  B.  §•  Ad.   856. 

(1)  Elton  V.  Larkins,  1  M.  &  Ro.  196. 
Langley  v.  Earl  of  Oxford,  1  M.  Sr  W  el. 
508,  where  there  had  been  an  alteration 
in  the  pleadings.  Doe  d.  Wetherell  r. 
Bird,  7  C.  &  P.  6.  A  summons  may  be 
taken  out  to  withdraw  the  admissions. 

(2)  Vant  WVl  V.  WoUey.  R.  &  M. 
4.  In  equity  a  party  has  been  obliged 
to  produce  cases  submitted  for  the  opin- 
ion of  counsel,  but  not  the  opinions. — 
Preston  v.  Carr,  I  Y.  &.  J.  175.  See 
Bolton  V.  Corporation  of  Liverpool,  1  P. 
Coop.  22.  That  a  statement  prepared 
by  an  attorney  for  the  opinion  of  coun- 
sel, is  evidence  against  a  party,  or  those 
identified  in  interest  with  him.  See 
Bishop  Meath  v.  Marquis  of  Winchester, 
3  Bins.  N.  C.  211. 


(a)  See  2  Hall,  54.5,  where  the  court  say — To  a  certain  extent,  the  rio^lits 
of  a  party  may  be  concluded  by  the  acts  of  liis  attorney.  See  13  Mass.  'SlU; 
1  Pick.  347;  id  4r)L  And  in  some  cases,  contrary  to  the  express  direction 
or  his  client;  such  as  consenting  to  have  a  default  stricken  off.  ]  Wond. 
108.  If  an  attorney  of  record  acquiesces  in  a  proceedings,  it  binds  tlie  party. 
1  Ohio,  270.  See  1  Blackf.  327.  And  when  the  defendant's  attorney  on 
the  record  had  admitted  the  execution  of  the  note  in  suit,  licld,  that  he  could 
not  afterwards  be  permitted  to  withdraw  the  admission,  and  require  proof  of 
the  note.    Daniel  v.  Ray,  1  Hill's  R.  32. 


372  Hearsay  Evidence.  [Chap.   18. 

counsel  on  a  former  trial  can  be  received  as  evidence  against 

the  client  on  a  new  trial,  even   supposing  the  client   to  liave 

been  present  and  within  hearing,   is  a   question   upon   which 

Autiioritv.    doubts  have  been   entertained.      Such  evidence  has  been  re- 

Criminal         .  ,    .  •    •         •  /o\ 

case.  jected  \\\  one  case  at  ntst  prius.  (o) 

Evidence  of  facts,  by  the  admissions  of  agents,  is  receiva- 
ble in  criminal  as  well  as  in  civil  cases.  Thus,  on  the  im- 
peachment of  Lord  Melville,  (4)  the  House  of  Lords  decided 
that  a  receipt  given  in  the  regular  and  official  form  by  Mr. 
Douglas,  (who,  as  it  was  proved,  had  been  appointed  by 
Lord  Melville  to  be  his  attorney,  to  transact  the  business  of 
his  office  of  treasurer  of  the  navy,  and  to  receive  all  necessa- 
ry sums  of  money,  and  sign  receipts  for  the  same)  was  admis- 
sible as  evidence  against  Lord  Melville,  to  establish  this  sin- 
gle fact,  that  a  person  appointed  by  him,  as  his  paymaster,  did 
receive  from  the  Exchequer  a  certain  sum  of  money,  in  the 
ordinary  course  of  business.  "The  first  step  in  the  proof  of 
the  charge,"  said  the  Lord  Chancellor,  "  must  advance  by  ev- 
idence applicable  alike  to  civil  and  to  criminal  cases  ;  for  a  fact 
must  be  established  by  the  same  evidence,  whether  it  is  to  be 

[  *411  ]  followed  *by  a  civil  or  criminal  consequence,  but  it  is  to- 
tally a  different  question,  in  the  consideration  of  criminal  jus- 
tice, as  distinguished  from  civil,  how  the  noble  person,  now 
on  trial,  may  be  affected  by  the  fact,  when  so  established. 
The  receipt  by  the  paymaster  would,  in  itself,  involve  him 
civilly,  but  could,  by  no  possibility,  convict  him  of  a  crime." 
Surety.  It  would  sccm  that  a  surety  cannot,  in  general,  be  affected 

by  evidence  of  an  admission  made  by  his  principal.  Thus, 
in  an  action  upon  a  guarantee  to  pay  for  goods  sold  and  deliv- 
ered to  a  third  person,  what  such  person  has  admitted  respect- 
ing the  delivery  of  the  goods  is  not  evidence  to  charge  the 
person  giving  the  guarantee.  (1)  In  an  action  for  contribution 

(3)  See   CpIIedge  v.    Horn,  3   Bing.     the  master  upon   a  bond    of   indemnity. 
119.  The  case   of  Perchard  «.  Hamilton    was 

(4)  29     Howell's     St.      Tr.    746,     cited,  but   was   thought  by  Bayley,  B., 
763.  not  to   apply.     It  vyould  seem,  however, 

(1)  Evans  v.  Beattie,  5  Esp.  26.     In  to  be  in  pomt.     In   Goss  v,  Watlington, 

Perchard  u.    Hamilton,    1  Esp.  394,  ati  3  B.  ^  B.  136.     VVhitnash  r.  George,  8 

action  by  a  sheriff  upon  a  bond  to  indeni-  B.  <|-  C.  556,  vide  supra.     The  entries 

nify  him    against    defaults    of  his  bailiff,  of  deceased    principals  were  received  on 

A  written  admission  b)i  the  bailiff  of  hav-  the   ground  that  they  were  made  in  ac- 

ing  received   levy-money,   was    held  by  counts  which  the   sureties  had  contracted 

Lord  Kenyon  to    be   admissible   against  that  they  should  faithfully  keep.     In  Cut- 

the    defendant,  on    the  ground    that   the  ler  v.  Newling,    Manning's  Di<^   Privies 

bailiff  was   in  fact    the  defendant  in    the  137,  on  the  execution  of  a  writ  of  inqui- 

action.     It  does    not   appear    that   there  ry  on  an  indemnity  bond,    an   admission 

was    any  evidence  to    shew  that  the  de-  by  the  principal  of  the  amount  of  damni- 

fendant  was  indemnified  by    the  bailiff,  fication   was   considered  by  Holroyd,  J., 

But  in  a  trial   at   Warwick,   Bayley,  B,,  inadmissible.     See   Bacon  v.  Chesney,  1 

held  that  a  written  admission  of  sums  re-  St.  192,  that  the  subsequent  declarations 

ceived    by   a    clerk  was  not    evidence  of  a  principal  are  not  admissible  to  prove 

,9^ainst  a  siirety  in  an  action  brought  by  the  termsof  the  original  contract. 


Sect.  1.]  Of  Admissions.  373 

brought  by  one  surety  against  a  co-surety,  where  a  defence 
was  set  up,  that  the  party  for  whom  they  had  become  sureties 
had  discharged  the  bond,  for  the  due  payment  of  which  they 
were  responsible,  the  declarations  of  the  obligee,  as  to  the  ac- 
count upon  which  he  received  the  money,  and  proof  of  the 
way  in  which  he  applied  it,  were  held  to  be  inadmissible,  it 
not  appearing  that  such  declarations  were  made  at  the  time 
of  payment.  (2)  Where  a  party  had  become  surety,  by  a  bond 
for  the  faithful  conduct  of  a  clerk,  it  was  held,  in  an  action 
upon  such  bond,  that  an  admission  by  the  clerk,  made  after  he 
was  *discharged,  of  various  sums  which  he  had  embezzled,  [  *412  ] 
was  not  receivable  in  evidence  against  the  surety.  (1) 

Admissions  are  not  only  receivable  against  the  parties,  who  ^''^'^y^^ 
make  or  authorize  them,  but  also  agamst  persons  identified  in 
interest  with  those  parties.  The  rules  for  the  admissibility 
of  such  evidence  are  analogous  to  those  which  are  found  in  the 
doctrine  of  estoppels,  and  which  govern  the  admissibility  of 
verdicts,  judgments,  and  depositions.  The  reader  is  therefore 
referred  to  the  second  part  of  this  Work,  which  treats  of  writ- 
ten evidence,  for  considerable  illustration  of  the  present  sub- 
ject. It  has,  indeed,  been  necessary  to  anticipate  some  por- 
tion of  what  would  properly  belong  to  the  second  part  of  the 
Work,  particularly  as  regards  answers  in  Chancery,  for  the 
elucidation  of  the  points  which  belong  to  the  present  Chap- 
ter. 

Thus,  with  regard  to  privies  in  blood  and  privies  in  law,  tiood!"" 
the  declarations  of  a  deceased  occupier  of  land,  that  he  rent- 
ed it  under  a  certain  person,  are  evidence  of  that  person's  se- 
isin against  a  party  claiming  as  the  heir  at  law  of  such  occu- 
pier, to  explain  the  nature  of  the  occupation,  and  to  shew 
that  it  was  not  adverse.  (2)  The  declarations  of  an  intestate  inlaw, 
are  evidence  against  his  administrator.  (3) 

(2)  Dunn  v.  Slee,  Holt,  401.  Such  a  session,  or  as  a  decltiration  against  inter- 
declaration  made  at  the  time  of  payment,  est.  See  Peaceable  v.  Watson,  4 
would  seen)  to  be  admissible  as  part  of  Tannt.  16.  Doe  r.  Jones,  1  Campb. 
the  res  gestw,  ib.  367.     These  points  are  illustrated  by  the 

(1)  Smith  V.  W'hittingham,  6  C.  ^  P.  doctrine  concerning  the  admissibilily  of 
78.  See  McGahey  v.  Alston,  2  M.  i^  verdicts  against  privies  in  law  and  in 
Wei.  213.  Goss  v.  Watlington,  3  Br.  blood,  infra,  part  two.  Locke  v.  Nor- 
&  B.  132.  Middieton  v.  Melton,  16  B.  bonne,  3  Mod.  141.  See  Outram  v. 
4-  C.  317.  Morewood,  3  Kast,  346.     Co.  Litt.  352, 

(2)  Doe  d.  Human  v.  Pettett,  3  B.  d^  a.  Pol.  61,  66.  Com.  Dig.  Estoppel,  B., 
A.    223.     If  this  case  is  to  be  treated  as  3  T.  K,  365. 

a  case  of  admissions,  it  would  seem  im-  (3)  Smith  v.  Smith,  3  Bing.  N.  C.  32. 

material,  that  the  declarant  was  deceas-  The  plaintilf  was    regarded    as   claitning 

ed.     But  the  evidence  may  be  consideiad  under   the    intestate,  though,  in   fact,  he 

also  as  a  declaration  explanatory  of  pes-  need  not  have  done  so. 

(a)  In  an  action  on  the  case  against  the  sheriff,  for  the  default  of  his  dep- 
uty, the  letters  and  confessions  of  i\\s  deputy  are  competent.  Tyler  v.  Ul- 
rner,  13  Mass.  498. 


374  Hearsay  Evidence.  [Ch.   18. 

In  estate.  With  rcspect  to  admissions  made  by  persons  who  have 
been  privies  in  estate  to  the  parties,  against  whom  the  admis- 
sions are  used,  the  evidence,  when  the  parties  are  deceased,  is 

[  *413  ]  generally*  admissible  on  a  ditferent  principle,  as  a  declaration 
against  interest.  (1)  And  when  the  parties  are  alive,  the  evi- 
dence may  frequently  seem  admissible,  as  explanatory  of  acts 
done  or  forborne,  or  of  the  fact  of  possession.  (2)  But  without 
reference  to  either  of  these  principles,  it  would  seem  that  an 
admission  by  a  proprietor  or  occupier  possessing  any  interest, 
would  be  evidence  as  to  the  nature  and  extent  of  that  inter- 
est, against  a  party  who  was  in  privity  of  estate  with  him.  (3) 
The  receipts  for  a  modus,  given  by  a  vicar's  lessee,  are  evi- 
dence against  the  vicar,  by  reason  of  the  privity  of  estate.  (4) 
An  answer  in  Chancery  is  admissible  in  evidence  against  a 
privy  in  estate.  (5)  (a)  A  statement  in  a  lease  by  a  landlord  has 

(1)  Vide  supra.  (4)  Jones  «.    Carrington,    1  C.  &  P. 

(2)  Vide  supra.  329.     So  although  the  party  giving   the 

(3)  Doe  d.  IManton  v.  Thrupp,  9  Bing.  receipts  be  entitled  only  un(ler  an  agree- 
41.  Walker  r.  Bradstock,  1  Esp.  4.51S.  menl  for  a  lease,  ib.  It  would  seem 
Davis  V.  Pierce,  2  T.  R.  53.  Baggaley  that  tiie  receipts  were  admissible  on  a 
V.  Jones,  1  Campb.  367.  Doe  v.  Pellet,  more  general  ground,  as  being  declara- 
5  f).  ^  A.  223.  Doe  v.  Rickerby,  5  tions  against  interest  by  deceased  per- 
Esp,  4,  bupra.      12  Vin.  Ab.  A.  b.  38,  sons. 

pi    10.      Tindal  r.    Whitrow,  1  C.  <S<:  P.         (5)  Earl   of  Sussex  v.  Temple,  Lord 

22.     With  respect  to    the  amount  of  in-  Raym.    310,       In   this   case    the   Court 

terest  requisite,  in  a  person  whose  declar-  went  the  length  of  determining,  that  the 

ation  can  bind  another  by  reason  of  priv-  answer  might  be    read  against  persons  in 

ity  of  estate,  see  infra,  as  to  the  verdicts  occupation   of  property,  on  proof  that  it 

in  this  respect.     As  to  the  effect  of  dec-  was  the   reputation    of  the    county,  that 

larations    by  tenants    against  the  interest  the  lands  had  belonged  to  the  person  mak- 

of  their    reverBioners,    per    Patteson,  J.,  ing  the  answer. 
Tickle  V.  Brown,  4  Ad.  &  E.  378. 


(a)  The  decisions  in  Kentucky  proceed  upon  the  distinction  that  the  an- 
swer filed  before  the  respondent  has  parted  with  his  interest  shall  be  received 
again.st  all  to  whom  the  subject  afterwards  comes;  but  not  if  filed  after. 
See  Ward  v.  Davidson,  2  J.  J.  Marsh,  443  ;  Rees  v.  Lawles,  4  Litt.  218. 

An  answer  in  the  court  of  probate  touching  the  effects  of  an  intestate  in 
his  hands,  is  admissible  in  a  proceeding  by  the  administrator  to  get  posses- 
sion of  the  property.     8  Pick.  3.54. 

In  a  contest  between  two  creditors  relating  to  the  property  of  the  debtor, 
the  admission  of  the  latter,  that  the  debt  of  the  plaintiff  is  bona  fide,  is  ad- 
missible.    .5  Pick.  410. 

It  is  said  (6  Cranch  24)  that  the  answer  of  a  defendant  may  be  evidence 
against  a  co-defendant,  who  derives  his  right  from  him.  But  this  is  denied. 
2  J.  J.  Marsh.  443 ;  2  Wheat.  380. 

Where  plaintiffs  filed  a  bill  in  equity  against  defendants  who  had  assigned 
their  property  for  the  benefit  of  their  creditors,  held,  that  the  separate  an- 
swers were  not  sufficient  to  support  a  joint  assumpsit.    2  Hall,  130. 

The  general  rule  which  prevails  in  chancery  is  that  the  answer  of  one 
defendant  cannot  be  used  as  evidence  against  his  co-defendant.  The  an- 
swer of  an  agent  is  not  evidence  against  his  principal,  nor  are  his  admis- 
sions in  pais,  unless  where  they  are  a  part  of  the  res  gesta.    2  Wheat.  383. 

The  case  of  partners  is  an  exception.  9  Cranch.  153.     But  in  a  proceed- 


Sect.   1.]  Of  Admissions.  375 

been  held  admissible   asainst  a  person   who  claims  under  a  Assip- 
subsequent  lease  of  the  same  land.  (6)  A  letter  written  by  a 
vicar,  in  respect  of  the  property  of  the  vicarage,  is  evidence 
against  his  successor.  (7) 

It  has  been  held,  upon  an  issue  between  two  persons,  wheth- 
er a  third  person  died  possessed  of  certain  property,  that  evi- 
dence might  be  given  of  a  declaration,  made  by  that  third 
person,  that  he  had  assigned  the  property ;  the  party,  against 
whom  the  declarations  were  adduced,  claiming  under  that 
person.  (8)  A  case  stated  for  the  opinion  of  counsel,  touching  J^^n*^"*'' 
the  right  of  ^presentation  to  a  living  by  a  bishop,  was  held  to  [  *414  ] 
be  evidence  against  a  subsequent  bishop  of  the  same  see,  on 
a  question  touching  the  right  of  presentation  to  the  same  liv- 

ing-(l) 

An  ancient  statement,  concerning  the  payment  of  tithes  of  '^''^"*- 

a  parish  by  a  modus  signed  by  the  rector  for  the  time  being, 
is  evidence  against  a  succeeding  rector.  (2)  An  answer  to  a 
bill  filed  in  the  Court  of  Exchequer,  in  a  suit  instituted  for 
tithe-hay  by  a  vicar  against  the  rector  and  others  (owners  of 
lands  in  the  parish,)  in  which  answer  the  defendants  disputed 
the  vicar's  claim,  and  declared  that  the  tithes  in  question  be- 
longed to  the  rector,  will  be  evidence,  in  an  action  for  tithes 
by  a  succeeding  rector  against  owners  or  occupiers  of  the  same 
lands,  for  the  tithes  of  which  the  former  suit  was  instituted. 
(3)  '-This  appears  to  me,"  said  Lord  EUenborough,  "not  to 
be  I'cs  inter  alios  acta,  but,  inter  eosdem  acta;  and  was  not 
only  evidence,  but  strong  evidence,  against  the  defendant, 
who  stood  in  the  same  place,  by  derivation  of  title  and  by  le- 

(6)  Crease  v.  Barret,  I  Cr.  M.  R.  they  were  all  evidenced  by  written  doc- 
932.  uments. 

(7)  Doe  d.  Coyle  v.  Cole,  6  C.  4-  P.  (2)  Maddison  v.  Nuttal,  6  Bing.  226. 
359.  Receipts  of  incumbents  have  been  recei- 

(8)  Ivat  V.  Finch,  1  Taunt.  141  ved  upon  the  same  grounds,  though  it 
The  judgment  also  proceeded  on  the  would  seem  that,  in  both  cases,  the  de- 
ground  of  a  declaration  against  interest  ;  ciaration  was  admissible  as  being  against 
which  seems  to  be  a  safer  ground,  as  the  interest. 

third  person  bad  parted  with  the  posses-         (3)  lisdy  Dartmouth  r.    RoberU,   16 

sion    before   the  declaration  was  made.  East,  334.     The  suit  was  abandoned  by 

Vide  infra.  the  vicar,  who  from  that   time  had   ac- 

(1)  Bishop  of  Meath   v.    Marquis  of  qoiesced.     See  also  Travii  ff.   Chalonor, 

Winchester,  3  Bing.  N.   C.    183.    The  3  Gwill.    1237      Ashby   a.    Power,    3 

decision  was  also  rested  on   the  groand  Gwill.  1239.     Benson  t).  Olive,  2  Gwill. 

of  the  statement   being  against  interest.  701.     Earl  of  Sussex  r.  Temple,  1  Lord 

there  was  no  personal  knowledge  of  the  Raym.  810. 
facts  containeid    in   the    statement,   but 


ing  by  one  partner  against  his  co-partners  for  an  account,  it  is  different.    11 
Pick.  331. 

The  answers  of  several  trustees  who  are  summoned  in  the  same  process, 
can  only  be  used  to  affect  the  trustee  who  made  it  ;  the  an.swcr  of  another 
cannot  be  introduced  to  explain  or  contradict  it.     3  Grcenl.  47. 


376  Hearsay  Evidence.  [CIi.   18. 

p;nl  obligation,  as  the  former  occupier  of  tlie  same  land  ;  and 
that  former  owner,  upon  his  oath,  in  a  suit  as;ainst  him  by  the 
vicar,  has  declared,  that  the  tithe  is  due  to  the  rector,  and  not 
to  the  vicar  ;  and  now  that  same  person,  in  effect,  (that  is,  the 
present  owner,  who  purchased  of  the  former  owner  the  very 
lands,  over  which  tithes  were  now  claimed,)  is  deraigning  the 
title  of  the  rector  in  favor  of  the  vicar." 
Surveys.  Although  ancient  books  of  survey  and  maps,  when  they  are 

not  in  the  nature  of  })ublic  documents,  (4)  have  been  in  some 
[  *415  ]  cases  considered  as  not  being  legitimate  evidence  of  *bounda- 
ry,  even  where  they  might  seem,  upon  priiiciple,  to  be  receiv- 
able on  the  ground  that  the  boundary  was  a  matter  of  public 
interest  and  concern,  (i)  yet  this  species  of  evidence  is  fre- 
quently available  by  way  of  admission,  where  there  is  a  priv- 
ity of  estate  between  the  person  against  whom  the  survey  or 
map  is  used,  and  the  person  directing  it  to  be  made.  Thus  it 
was  ruled  by  Lord  Holt,  that  if  A.  be  seised  of  the  manors  of 
B.  and  C.  and,  during  his  seisin  of  both,  he  causes  a  survey  to 
be  taken  of  the  manor  of  B.,  and  afterwards  the  manor  of  B. 
is  conveyed  to  E.,  and  afterwards  there  are  disputes  between 
the  lords  of  the  manors,  B.  and  C,  about  their  boundaries, 
this  old  survey  may  be  given  in  evidence.  (2)  lu  like  man- 
ner entries  of  receipt  of  rents  by  a  deceased  steward  have  been 
admitted,  in  a  suit  between  two  persons  who  both  claimed 
under  the  employer  of  that  steward.  (3) 
Prior  hold-  With  rcspcct  to  admissious  by  persons  in  possession  of  chat- 
^oliabie"  t*2^s  or  negotiable  securities  against  subsequent  proprietors, 
securities,  whicli  may  be  thought  analogous  to  admissions  by  privies  in 
estate,  it  appears  to  be  a  rule,  that  where  a  person  must  recov- 
er through  the  title  of  another,  he  is  bound  by  the  declara- 
tion of  the  party  through  whom  he  claims.  Thus,  if  a  per- 
"*^'  ^'  son  bring  an  action  upon  a  bill  of  exchange,  the  declaration  of 
a  person,  who,  at  the  time  when  such  declaration  was  made, 
was  holder  of  the  bill,  and  who  had  not  parted  with  it  till  af- 
ter it  was  due,  is  evidence  against  the  plaintiff,  being  made 

(4)    Vidt  sui^ra.  has  been  allowed   in  evidence,  where   it 

<lj    J-'irfe  .vitpra,  case  of  Parish  map.  came  along    wiih   writings,    and    agreed 

(2)  Uridgman    v.    Jennings,    1    Lord  with  the  boundaries  adjusted    in    an   an- 

Raytn.  734.     Asid  see  Davies  v.  Pierce,  cient  parchase,  Gilb.  Ev.  78. 

2  T-    R.    53.     AJIot   V.    Wilkinson,    4  (3)  Doe  d.   Strode  v.  Seaton,    2   Ad. 

Gvvill.  1585  ;  2  E.  4^  Y.  293;  N.  B.  P.  *■  Ell.   171,   cases   where  the   evidence 

283.     That  such  a   survey    is    not   evi-  would  have  been  receivable  as  a  decla- 

dence  a?aii»st  a   stranger,  per  Lord  Holt,  ration  against    interest    have   sometimes 

ih.     Anon.   1     Str.    93;   I  Lord  Raym.  been  deternuned  on  the  principle   under 

734;  5  T.  R.  123;  12  Vin.  Ab.    90,  pi.  consideration.     .As  to  tithe   receipts,  see 

12.     It  has  been  said,  that  an   old    map  3  E.  &;  Y.,  tithe  cases,  1 129,  1131. 


Sect.  1,]  Of  Admissions.  377 

by  one    according    to   whose    title    his  own  must  stand   or 
fall.  (4)(«) 

*But  it  seems  that  the  analogy  with  respect  to  the  admis-  Nopriviiy. 
sions  of  privies  in  estate  is  not  adhered  to,  where  title  to  nego-  t  *^^^  ] 
liable  instruments  is  derived  from  persons  who  liavc  made  ad- 
missions, but  where  there  is  not  any  existing  identity  of  in- 
terest. In  such  cases,  the  right  of  a  person  holding  by  a  good 
title  is  not  to  be  cut  down,  by  the  acknowledgment  of  a  form- 
er holder  that  he  had  no  title.  Thus,  in  an  action  by  the  in- 
dorsee against  the  maker  of  a  promissory  note  payable  with 
interest  on  demand,  the  declarations  made  by  the  payee^ 
whilst  the  note  was  in  his  possession,  to  the  effect  that  he 
gave  no  consideration  for  it  to  the  maker,  were  held  inadmis- 
sible for  the  defendant,  on  the  ground  that  the  plaintiff  could 
not  be  identified  with  the  payee,  the  bill  not  being  overdue 
at  the  time  of  the  indorsement.  (1)  {b)  The  declarations  were 

(4)   Benson  u.  Marshall,  cited  in  Shaw  niiglit  be  material  to  the  validity    of  the 

V.  Broom,  4  Dow.  &  R.  731.  derivutive  one.     Smith    v.    De    Wruitz, 

(1)  Barough  v.  White,  4  B.  &  C.  R.  &,  M.  212,  appears  to  have  been  de- 
327.  See  this  case  explained  by  Parl<e,  cided  upon  a  misapprehension  of  the 
J.,  in  Woolway  v.  Rovve,  1  Ad  «^"  Ell.  point  determined  in  Shaw  v.  Broome,  4 
116.  It  would  seem  that  the  objection  J).  &  R.  731.  Such  admissions,  where 
of  the  payee  being  living,  which  was  the  circumstances  permit,  seem  to  be  re- 
made by  some  of  the  Judges,  could  not  ceivable,  on  liie  ground  of  being  decla- 
liold  if  the  evidence  were  treated  as  an  rations  against  interest  by  deceased  per- 
admission  by  a  privy  in  estate.  Wool-  sons.  Per.  Holroyd  J.,  in  Barough  v. 
way  u.  Rowe,  I  Ad.  ^  Ell.  114.—  White,  4  B.  &  C.  327.  See  further  on 
Though  the  bill  was  not  overdue,  and  this  subject.  Banks  v.  Colvvell,  cited  in 
therefore  there  was  not  a  general  iden-  Brown  w.  iJavis,  3  T.  R.  80.  Pocock 
lily  of  interest  between  the  payee  and  v.  Billings,  2  Bing.  269.  Carters.  Sber- 
indorsee,  yet  the  point,  of  there  being  wood,  1  C-  &  P.  148.  PecUham  v.  Pot- 
no  original  consideration  for  the  bill,  ter,  3  C.  <^-  P.  232. 
was  a  defect  in  the  original    title,  which 


(a)  In  order  to  let  in  the  declarations  of  the  payee  of  a  note,  it  must  first 
be  shown  that  the  plaintiff  is  identified  in  interest  with  the  payee,  and  ac- 
cordiniT  to  the  English  cases  he  is  so  identified  when  it  appears  that  he  took 
the  note  after  it  became  due,  or  without,  consideration.  Ilatch  v.  Dennis,  1 
Fairf  249 — Parris. 

The  action  in  that  case  was  brought  by  the  endorsee  against  the  maker, 
and  the  latter  to  prove  payment  was  permitted  to  prove  the  declarations  of 
the  payee  who  made  the  endorsement;  the  note  being  then  overdue  ;  citing 
4  J.  R.  230  ;  Norton  v.  Pettibone,  7  Conn.  31!);  4  S.  &  R.  174  ;  and  Gibble- 
house  7>.  Stong,  .3  Rawle,  437.  Mr.  .Tustice  Parris  in  Hatch  v.  I) emus,  svpr a, 
concludes  by  saying: — "  Upon  a  careful  c.\';uiiiiiation  of  all  the  cases  bear- 
ing upon  tliis  question  including  that  of  Whitakcr  />.  Brown,  8  Wend.  490, 
we  think  the  weight  of  authority  is  in  favor  of  admitting  the  declarations  of 
the  payee,  when  made  under  such  circumstances  as  thi.s." 

VVhere  the  payee  had  guaranteed  the  payment  of  the  nolo,  it  was  held 
that  his  admissions  were  not  admissible  in  an  action  against  the  maker, 
the  court  saying  that  he  was  a  competent  witness  ihr  defendant  but  not 
for  the  plaintiff.  Dri.'^tol  v.  Dann,  12  Wend.  J-J2.  Uut  sue  post  p.  418 
note. 

{b)  The  declarations  of  the  payee  after  he  has  parted  with  the  note  ara 
not  admissible.    5  Watts,  4^2. 
48 


378  Hearsay  Evidence.  [Ch.  18. 

not  those  of  a  person  who  held  the  negotiable  security  under 
the  same  circumstances  as  the  party  to  the  action. 

In  BeaucJiamp  v.  Vassey,  it  was  held,  that  as  the  indorsee 
of  a  promissory  note  does  not  claim  by  the  title  of  the  indorser, 
but  has  a  title  of  his  own  as  indorsee,  he  ought  not  to  be  af- 
fected by  any  declarations  of  the  indorser  and  payee,  the  note 
not  being  taken  without  consideration,  or  after  it  was  due, 
notwithstanding  the  declarations  were  made  whilst  the  payee 
and  indorser  were  in  the  possession  of  the  note.  (2) 
rVat'^de-  *But  as  a  person  cannot  be  regarded  a  privy  in  estate  with 
termincd.  a  subscqueut  posscssor  of  the  estate,  except  during  the  time 
[  *417  ]  when  the  estate  was  in  his  own  possession,  it  has  been  held, 
that  an  answer  in  Chancery  respecting  the  title  to  an  advow- 
son,  filed  by  one  who  had  been  formerly  seised  of  the  advow- 
son,  but  who  had  conveyed  it  away  twenty  years  before  the 
answer,  was  not  admissible  against  a  person  claiming  the  ad- 
vowson,  through  him.  (1)  And  admissions  by  a  mortgagor, 
made  after  he  had  parted  with  his  interest  by  a  settlement, 
have  been  held  not  to  be  admissible  on  behalf  of  a  mortga- 
gee, to  shew  that  the  money  had  actually  been  advanced  on 
the  mortgage,  the  mortgagee  seeking  to  avoid  the  settlement 
as  being  voluntary.  (2)  An  admission  made  by  a  person  who 
takes  a  bankrupt's  goods  in  execution,  that  he  knew  an  act  of 
bankruptcy  had  been  committed,  is  not  evidence  against  a  per- 
son who  takes  the  goods  by  assignment  from  the  sheriff, 
where  the  admission  is  subsequent  to  the  assignment.  (3)  It 
has  been  held,  that  the  declaration  by  a  prior  owner  of  proper- 
ty whilst  in  possession,  as  to  the  person  who  was  to  be  enti- 
tled to  his  property  after  his  death,  was  not  receivable  against 
a  subsequent  owner  of  the  same  property ;  though  we  have 
sssn  that  upon  more  than  one  ground,  a  declaration  of  such 
prior  owner,  to  the  effect  that  he  had  only  a  life  estate,  is 
admissible.  (4) 
Author  of  Admissions  respecting  the  subject  matter  of  a  cause,  by  a 
not  called,  person  who  at  the  time  of  making  them  had  the  same  interest 
in  such  matter  rts  one  of  the  parties  to  the  cause,  are  admissi- 

(2)  I  Vt.  Sf  Ad.  91.     An  exception  is  tions  or  not.     Some  confusion  is  howev- 

there  made  as  to  declarations  contempo-  er  introduced  into  the  case  by  Lord    El- 

raneous  with  the   making   of  an    instru-  lenborough  stating,  that  evidence    of  an 

nient,  and  the  case   of  Kent   v.    Lowen  act  done  was  adinissibie  against   persons 

wag  referred  to,  where  letters   from    the  claiming  under  those  who    did    the    act, 

payee    to    the    maker    were    admitted,  whereas  the  admissibility  of  the  evidence 

which  stated  an   usurious   consideration  does  not  appear  to  depend  on  the  privity 

for  the  note.     It  was  said,  that  if  the  de-  of  the  parties. 

clarations  had  been  made,  as  in  the  case         (1)  Gully  v.  Bishop  of  Exeter,  5  Bing. 

of  Kent  r.  Lowen,  at   the   time   of  the  17  L 

contract,  the  case   might  be   different.         (2)  Doe  d.    Sweetland   v.   Webber, 

It  is  to  be  observed,  that  in  Kent  v.  Low-  1  Ad.  &  El.  733. 
en,  the  letters  were  the  usurious  contract         (3)  Deady  v.  Harrison,  1  St.  60. 
itself,  and   it  can   make   no   difference         (4)  Harrison    and    wife    v.    Moore, 

whether  an  act  consist  of  oral  declara-  Nott.  Spr.  Ass.   1837,   per  Littledale  J. 


Sect.   1.]  Of  Admissions.  379 

ble  *in  evidence  against  that  party,  though  the  person  who  [  *418  ] 
made  the  admissions  is  alive  and  might  be  called  as  a  wit- 
ness. (1)  (a)  The  same  rules  seem  to  apply  to  such  admis- 
sions of  agents  as  are  receivable.  There  is  perhaps  some  rea- 
son for  the  distinction  between  the  rule  which  prevails  in 
such  cases,  and  that  which  governs  declarations  against  inter- 
est, inasmuch  as  in  the  latter  case,  the  party  to  the  suit  is  to 
be  affected  by  the  declaration  of  a  person  with  whom  he  has 
no  community  of  interest,  and  for  whose  assertions  he  is  not 
responsible. 

There  are  several  other  doctrines  applicable  to  the  subject  of 
admissions,  for  which  the  reader  must  be  referred  to  the  sec- 
ond part  of  the  Work  :  the  pri:iciples  alluded  to  having  been 
established  and  elucidated  in  cases  arising  upon  the  admissi- 
bility of  verdicts  and  depositions.  And  it  may  be  observed, 
that  the  doctrines,  which  have  been  treated  of  in  the  present 
chapter,  derive  considerable  illustration  from  that  branch  of 
the  law  of  evidence. 

Besides  the  admissions,  which  have  been  more  particularly 
the  subject  of  consideration  in  the  present  chapter,  there  is 
another  class  consisting  of  admissions  made  in  the  course  of 
the  pleadings  of  a  cause  and  particularly  where  there  is  a  pay- 
ment of  money  into  Court.  The  rules  which  govern  admis- 
sions of  this  description  are  altogether  technical,  and  more 
properly  belong  to  that  branch  of  law  which  treats  of  the  prac- 
tice adopted  by  Courts,  for  ascertaining  previously  to  a  trial 
the  material  facts  in  dispute  between  the  litigating  parties,  (b) 

(1)  Woolway  v.  Rowe,  1  Ad,  &   El.  114. 


(ffl)  See  Jackson  v.  Bard,  4  J.  R.  230 ;  Jackson  v.  Myers,  11  Wend.  533 ; 
12  id.  142 ;  7  Conn.  319  ;  Gibblehouse  v.  Stong',  3  Rawle,  437.  In  this  case, 
the  declarations  of  one  holding  the  legal  title  were  admitted  to  show  that  he 
was  merely  a  trustee  for  another  who  paid  the  purchase  money,  against  those 
claiming  under  him,  although  he  was  at  the  time  such  declarations  were 
offered  in  evidence,  within  the  reach  of  the  process  of  the  court,  and  capa- 
ble of  being  examined  as  a  witness.  The  application  of  this  principle 
was  recognized  in  2  M'Cord  241,  and  in  2  Fairf.  249.  But  see  10  Conn.  8, 
where  the  declarations  of  one  who  was  living  and  competent  to  testify,  were 
held  not  to  be  admissible,  although  such  declarations  were  against  his  in- 
terest at  the  time  they  were  made. 

{/j)  The  plea  of  tender  and  payment  of  money  into  court  is  such  an  ad- 
mission as  precludes  objection  to  the  form  of  the  action.  6  Watts,  74.  And 
if  paid  generally,  and  there  are  several  counts,  it  admits  the  contract  set  out 
in  each  count.  CI  Pick.  340.  Thus,  where  an  agent  of  a  corporation  was  to 
have  such  compensation  as  the  board  of  directors  should  consider  "reason- 
able"; and  the  corporation  paid  the  money  voted  into  court:  Held,  that 
plaintiff  was  notwithstanding  entitled  to  recover  a  reasonable  compensation 
ficcording  to  his  declaration,     id.  340. 


380  Hearsay  Evidence.  [CIi.   18. 

[  *419  ]  ^Section  11. 

Confessions. 

The  confessions  of  prisoners  are  received  in  evidence  upon 
the  same  principle  upon  which  admissions  in  civil  suits  are 
received,  viz.  the  presumption  that  a  person  will  not  make  an 
untrue  statement  militating  against  his  own  interest.  In 
criminal  cases,  a  confession  in  civil  suits,  carries  with  it  a 
greater  probability  of  truth  than  a  coufession,  the  consequen- 
ces being  more  serious  and  highly  penal :  "  haheonus  optimum 
testem,  confitentem,  reum.^^  (1)  But  it  is  to  be  observed,  there 
may  not  unfrequently  be  motives  of  hope  and  fear  inducing  a 
person  to  make  an  untrue  confession,  which  seldom  operate 
in  the  case  of  admissions.  (2)  And,  further,  in  consequence 
of  the  universal  eagerness  and  zeal  which  prevail,  for  the  de- 
tection of  guilt,  when  offences  occur  of  an  aggravated  char- 
acter, in  consequence  also  of  the  necessity  of  using  testimo- 
ny of  suspicious  witnesses  for  the  discovery  of  secret  crimes, 
the  evidence  of  confessions  is  subject,  in  a  very  remarkable 
degree,  to  the  imperfections  attaching  generally  to  hearsay 
evidence.  (3)  For  these  reasons,  the  statements  of  prisoners 
are  often  excluded  *from  being    given  in  evidence,    in   cases 

L  '*'^'-'  J  where  they  would  be  unobjectionable  as  the  admissions  of  a 
party  to  a  civil  suit. 

i^oiTs™'"^'  Confessions  of  prisoners  are  often  made  in  the  course  of 
their  examination  before  magistrates.  These  examinations 
are  taken  in  the  course  of  a  judicial  proceeding,  and  accord- 
ing to  prescribed  forms;  consequently  the  evidence  of  confes- 
sions contained  in  them  is  obviously  free    from   many  of  the 

(1)  Confessions  have  been  treated  as  (3)  Foster's  Disc.  243,  where  it  is 
the  highest  and  most  satisfactory  evi-  oberved,  that  words  in  criminal  cases 
dence  of  guilt.  Grose,  J.,  delivering  the  are  often  misreported  through  ignorance, 
opinion  of  the  judges  in  Lambe's  case,  inattention,  or  malice,  and  extremely  li- 
2  Leach,  554,  Gift).  Ev.  137,  VVarick-  able  to  misconstruction,  and  that  the  evi- 
shall's  case,  1  Leach,  263.  dence  cannot  be  disproved   by    negative 

(2)  Foster's  Discourses,  243;  4  Bl,  evidence,  in  the  same  manner  as  facts. 
Comm.  357.  Instances  have  occurred.  Speech  of  Mr.  Adam,  in  Crossfield's  tri- 
of  persons  confessing  themselves  guit'y  a1  for  High  Treason  26  Howell,  57, 
of  crimes  of  which  they  were  innocent,  where  it  is  observed,  that  the  person  re- 
and  of  their  acting,  whilst  under  the  im-  lating  the  confession  is  generally  reliev- 
putation  of  crimes,  in  a  manner  afford-  ed  from  the  apprehension  of  punishment, 
ing  strong  presumption  of  guilt.  See  and  that  what  people  have  said  upon  a 
cases  of  iVir.  Harrison,  cited  1  Leach,  subject  shocking  or  otherwise  exciting,  is 
264,  n.  A  case  mentioned  by  Lord  usually  repeated  with  exaggeration. — 
Hale,  in  his  PI.  Cr.  See  also  the  con-  And  see  per  Alderson,  B.,  in  Rex  v. 
fessions  of  Witches,  2  Howell,  1049;  4  Simons,  6  C.  &  P.  540,  where  a  prison- 
Howell,  817;  6  Howell,  647.  TheSuf-  er's  conversation  with  his  wife  was  re- 
folk  Witches  tried  by  Lord  Hale,  8  peated  differently  by  the  witnesses, 
Howell,  1017. 


tions. 


Sect.  2.]  Confessions.  381 

objections  incident  to  various   other   species   of  hearsay  evi- 
dence. 

As  the  principles  apphcable  to  confessions  in  general  apply 
to  such  as  are  contained  in  examinations  before  magistrates, 
it  has  not  been  thought  expedient  to  treat  of  examinations 
apart  from  the  general  subject.  A  more  particular  account  of 
such  examinations,  and  the  mode  of  proving  them,  will  be 
found  in  the  second  part  of  the  Work,  which  however,  is  un- 
avoidably anticipated  in  some  measure  in  the  present  section. 
Various  points  also  as  to  the  verbal  proof  of  confessions  made 
in  the  presence  of  magistrates  will  be  considered  in  the  chap- 
ter on  SecoTidarij  Evidence. 

As  we  have  had  occasion  to  observe  in  treating  of  admis-  fJsg"o,^.*'°"' 
sions,  it  is  necessary  that  the  whole  of  what  a  prisoner  has 
said,  on  the  occasion  of  making  a  confession,  should  be  rela- 
ted entire.  This  rule  did  not  prevail  in  early  times,  when  it 
was  usual,  in  state  trials,  to  select  arbitrarily  from  a  prisoner's 
examination  any  part  that  might  be  prejudicial  to  him,  though 
the  whole  examination,  if  taken  together,  might  have  had  a 
different  effect.  (1)  We  have  seen  that  the  rule  laid  down  in 
the  Queen^s  case,  (2)  respecting  admissions  and  confessions, 
requires  not  only  that  those  parts  of  a  conversation  *should  [  *421  ] 
be  received  which  explain  or  qualify  the  language  of  a  con- 
fession, but  such  also  as  are  not  connected  with  the  confession, 
provided  they  relate  to  the  subject  matter  of  the  charge. 
Thoua:h  it  may,  in  strictness,  be    doubted,   whether  there    is  EfToct  of 

rY.    ■  r  i--,i  .X  ^  ■  parts  favor- 

sufiicient  reason  for  admittmg  the  statements   of  a   prisoner,  kbie  lo  pris- 
for  the  purpose  of  proving  facts  in  his  favour,    without  refer-  °"<^''*- 
ence  to  their  effect  in  explaining  or  qualifying  his  confession, 
yet  in  practice  such  statements   are    commonly   received    for 
that  purpose,  (a) 

It  has  been  held,  that  the  reading  of  prisoner's  statement, 
at  the  end  of  depositions  taken  before  a  magistrate,  does  not 

(1)  See,  amongst  many  other  instan-  Jardine's  Criminal  trials,  vol.  ii,  p.  357. 
ces,  the  declaration  of  Garnet,  in  his  (2)  2  Br.  &  B.  298.  The  ground 
handwriting,  read  upon  h'la  trial  for  the  assigned  hy  Lord  Tenterden,  that  it 
Gunpowder  Plot.  In  the  original  con-  would  not  be  just  to  take  part  of  a  con- 
fession, in  the  State  Paper  Otlico,  there  versation  as  evidence  against  a  party, 
are  letters  in  Sir  E.  Coke's  handwriting,  without  giving  to  the  party,  at  the  sanio 
pointing  out  to  the  officer  of  the  Court  time,  the  benefit  of  the  eptire  residue, 
what  he  was  to  read,  and  which  pro-  seems  open  to  exception,  i)it/esMj>ra,Oj» 
duce  quite  a  diil'erent  effect  from  that  of  admissions. 
the   whole    declaration  taken   together. 


(a)  A  corresponflonce  rloposited  by  order  of  court  cannot  bo  read  in  part, 
if  the  defendant  shall  rerpiiro  the  whole  to  bo  read.  17  Wend.  .'591  ;  Jl  .F.  R. 
2G0.  But  where  an  answer  is  put  in  witliout  oath,  the  complainant  may  use 
one  part  of  the  answer  without  being'  bound  by  the  statements  and  allega- 
tions in  other  parts  of  the  same  answer.  4  Paige  507.  SSee  3  Mon.  R, 
249 ;  11  Conn.  460,  and  ante  p.  357,  n. 


383  Hearsay  Evidence.  [Ch.   18. 

In  general  give  the  prisoner  a  right  to  consider  the  depositions 
as  given  in  evidence  on  the  part  of  the  prosecution,  unless  the 
(Statement  specifically  applies  to  and  is  essentially  connected 
with  any  of  the  previous  depositions.   (1) 

With  respect  to  the  effect  of  what  the  prisoner  may  have 
paid  favourable  to  himself,  at  the  time  of  making  a  confes- 
sion, it  is  conceived  that  the  same  rule  prevails  as  in  the  case 
of  admissions,  and  that  a  jury  may  believe  one  part  of  the 
I)risoner's  statements  and  disbelieve  another.  Thus,  where  a 
jn-isoner  was  indicted  for  stealing  a  piece  of  cloth,  and  it  was 
proved  that  he  sold  it  very  soon  after  it  was  lost,  at  a  place 
distant  from  the  residence  of  the  prosecutor,  and  the  prisoner's 
examination  wag  given  in  evidence,  in  which  he  stated  that 
the  cloth  was  honestly  bought  and  paid  for,  Mr.  Justice  Parke 
observed,  "  that  in  consequence  of  the  prosecutor  using  what 
the  prisoner  had  said  as  part  of  his  evidence,  it  became  evi- 
dence for  the  prisoner  as  well  as  against  him,  but  still  it  was 
like  all  evidence  given  in  any  case,  and  it  was  for  the 
jury  to  say,  whether  they  believed  it."  (2j 

[  *422  ]  *Jt  has  been  supposed,  that  where  a  prosecutor  uses  a  priso- 
ner's statement,  he  gives  to  the  pafts  favourable  to  tiie  priso- 
ner more  weight  than  would  properly  belong  to  a  party's  as- 
sertion of  his  own  innocence,  and  that  the  facts  contained  in 
such  favourable  part  of  the  prisoner's  statement,  are  to  be  con- 
sidered as  established  until  disproved.  (1)  It  rnay  be  doubts 
ed  however,  whether  these  opinions  are  well  founded,  when 
it  is  considered  that  the  original  object  of  introducing  the 
whole  of  a  prisoner's  statement  is  merely  to  guard  against  any 
misapprehension  of  the  prisoner's  meaning,  in  the  terms 
which  he  has  used  to  confess  himself  guilty  of  a  crime.  It 
is  clearly  competent  for  the  prosecutor  to  contradict  the  parts 
of  a  prisoner's  statement  which  are  favourable  to  him.  (2) 

Demean-  Aualogous  to  similar  cases  of  admissions,  a  confession  may 

be  collected  or  inferred  from  the  conduct  and  demeanour  of  a 
prisoner  on   hearing  a  statement  aJB^'ecting   himself.  (3)      As 

(1)  Rex  r.  Pearson,  7  C.  &  P.  671.  ced.  See  Rex  v.  Clewes,  4  C.  ^  P, 
An  example  is  put  of  specific  reference,  226. 

33  where  a  prisoner  states,  that   what   a         (1)  In  Jones's  case,  2  C.    &  P.    629. 

particular  witness  has  deposed  to  is  true.  It  is  said,  that  if  there  is  not  evidence  in 

(2)  Rex  t).  .Higgins,  3  C.  &  P.  604.  the  case,  independently  of  the  prisoner's 
The  prisoner  was  found  guilty.  The  statement,  which  is  incompatible  with 
statement  might  have  been  adduced  by  the  parts  of  it  favorable  to  the  prisoner, 
the  prosecutor  for  the  purpose  of  identi-  these  must  be  taken  to  be  true.  See  ib. 
fying  the  prisoner,  as  the  person  selling  a  case  before  Garrow,  B.  A  similar 
the  cloth;  see  Rex  i'.  Steptoe,  ■i  C  Sf  opinion  appears  to  have  been  expressed 
P.  397.  The  point  may  not  unfrequent-  by  Litlledale  J.,  iu  Rex  v.  Clevves,  4  C. 
ly  arise,  where  a  prisoner  admits   killing  &  P.  226. 

a  man,  but,  at  the  same  time,  states  facts,         (2)  Per  Bosanquet.     Jones's  case,    2 

which,  if  true,  would  reduce  the  crime  to  C.  Sf  P.  629. 

manslaughter,  and,  in  such   a  case,   dif-         (3)    Such     evidence    is     admissible, 

ferent  questions  will  arise,   according  as  though  the   statement   be   made   in    the 

there  is,  oris  not  other  evidence   produ-  presence  of  the  prisoner  by   his   wife, 


or. 


Sect.  2.]  Confessions.  383 

such  statements  frequently  contain  much  hearsay  and  other 
objectionable  evidence,  and  as  the  demeanour  of  a  person  up- 
on hearing  a  criminal  charge  against  himself  is  liable  to  great 
misconstruction,  evidence  of  this  description  ought  to  be  re- 
garded with  much  caution.  It  has  been  decided,  that  the  de- 
position of  a  witness,  or  the  examination  of  another  prisoner, 
taken  in  a  criminal  case  before  a  magistrate,  is  not  admissible 
in  evidence  merely  because  the  party  affected  by  it  was  pres- 
ent, or  might  have  had  an  opportunity  of  cross-examining  or 
of  commenting  on  the  evidence.  The  party  is  prevented 
from  interposing  at  his  will  and  pleasure,  and,  therefore,  the 
same  inference  ought  not  to  be  drawn  from  his  silence  *or  his  [  *423  j 
demeanour,  as  is  frequently  done  in  the  case  of  conversa- 
tions. (1) 

A  prisoner's  confession  is  sufficient  ground  to  warrant  a  con-  J;^f,p8,"o„. 
viction,  although  there  is  no  other  proof  of  his  having  com- 
mitted the  offence  with  which  he  is  charged.  And  it  appears, 
from  several  cases,  that  his  confession  may,  in  some  instances, 
even  supply  the  absence  of  all  proof  as  to  the  fact  of  the  com- 
mission of  the  offence  charged.  (2)  («)  But  a  confession  is 
obviously  not  conclusive  evidence  against  a  prisoner,  and  when 
it  involves  matter  of  law  is  to  be  received  with  more  than 
usual  caution.  (3)  (b) 

and  whether  he  makes  answer  or  not.  pcafance.  In  Rex  v-  White,  R.  Si'  R. 
Rex  t).  Barlleet,  7  C.  &  P.  832.  Rex  Cr.  Ca.  508.  Rex  u.  Tippe^  ifcW.  509, 
V.  Smithies,  5  C.  &  P.  332.  no  person  could  swear  that  the  property 
(1)  Appleby's  case,  3  St.  33.  Mel-  (which  was  oats)  had  been  actually  slo- 
en  V.  Andrews,  M.  &  M.  386.  Turner's  len,  though  ihere  was  strong  contirmato- 
case,  I  Mo.  Cr.  C.  347.  The  case  of  ry  evidence  making  the  theft  probable. — 
Rex  V.  Edmunds,  6  C.  4-  P.  164,  seems  The  report  states  that  most  of  the  Judg- 
of  doubtful  authority.  There,  Tindal,  es  were  of  opinion,  that  without  the 
Ch.  J.,  received  a  statement  upon  oalh,  confirmatory  evidence,  the  jury  might 
made  on  the  occasion  of  a  summary  con-  have  convicted  on  the  prisoner's  confes- 
viction  in  the  presence  of  a  prisoner.  sion.  In  Wheeling's  case.  Leach  311, 
(2)  In  Rex  v.  Eldridge,  R.  ^  R.  Cr.  Ca,  n.  a.,  it  is  stated  to  have  been  detcrmin- 
440,  the  Court  thought  there  was  sufii-  ed  by  Lord  Kenyon,  that  a  prisoner 
cient  evidence  to  confirm  the  confession,  might  be  convicted  on  his  own  confes- 
In  Rex  V.  Falkner,  R.  &  R.  Cr.  Ca.  sion,  thoogh  totally  uncorroborated  by 
481,  the  only  other  evidence  was,  that  any  other  evidence, 
the  prisoner  had  sent  a  message  to  the  (3)  Vide  supra.  Admissions  of  mat- 
parly  alleged  to  have  been  robbed,  and  ters  of  law.  Philips'  case,  1  Rio.  Cr^ 
who  did  not  appear,   to  prevent  his   ap-  C.  271,  where  a  prisoner's  statement,  as 

(a)  Efftd  of  confession.  In  State  v.  Guild,  5  Hals.  R.  1G3,  the  conrt  say: 
— "  A  prisoner  may  be  convicted  on  his  own  confession,  when  proved  by 
lejfal  testimony,  although  it  is  uncorroborated  by  any  other  evidence,  pro- 
vided the  corpus  delicti  be  proved."  A  naked  confession,  nnattended  with 
circumstances,  is  not  sufficient,  lllayiv.  4.55.  In  State  t?.  Guild,  S7/;;m,  a^ 
boy  under  13  years,  was  convicted  on  liis  own  confessions,  of  tiie  crime  of 
murder,  and  executed.  So  in  the  case  of  the  State  v.  Dillon,  4  Dall.  11 H,  a 
boy  was  convicted  of  arson  on  his  own  voluntary  confession,  slightly  cor- 
roborated by  two  witnesses. 

(6)  A  party's  confession  is  to  be  received  with  great  cantion;  it  is  the 
weakest  kind  of  testimony.    4  Mon.  R.  239 ;  G  id.  13G.    Sec  9  Pick,  497  and 


384  Hearsay  Evidence.  [Ch.   18. 

Voluntary  Jt  has  been  considered  necessary  in  all  cases,  previous  to 
receiving  a  confession  in  evidence,  to  inquire  whetlier  it  has 
been  voluntary.  The  usual  questions  are  whether  the  pris- 
oner has  been  told,  that  it  would  be  better  for  him  to  confess, 
or  worse  for  him  if  he  did  not  confess,  or  whether  any  lan- 
guage to  that  eftect  has  been  used.  The  presumption  of  the 
truth  of  the  statement  is  supposed  to  cease,  when  there  is 
ground  to  apprebend  that  it  may  have  been  wrung  from,  a  tim- 
id and  apprehensive  mind,  deluded  by  promises  of  safety,  or 
subdued  by  threats  of  violence  or  punishment.  (4)     This,  as 

r  *424  1  was  before  observed,  is  a  supposition  *not  wholly  unconfirm- 
ed by  experience.  .  But,  perhaps,  the  cases  are  rare,  in  which 
such  unfounded  self-accusations  occur,  or,  at  least,  where  a 
juiy  would  be  misled  by  them  :  and  certainly  the  rule  occa- 
sions, in  a  multitude  of  instances,  the  escape  of  the  guilty. 
There  is  a  general  feeling,  w^hich  seems  to  be  well  founded, 
that  the  rule  has  been  extended  nmch  too  far,  and  been  ap- 
plied in  some  cases,  where  there  could  be  no  reasonable  ground 
for  supposing  that  the  inducement  offered  to  the  prisoner  was 
sufficient  to  overcome  the  strong  and  universal  motive  of  self- 
preservation.  The  doctrine  has  also  been  attended  with 
much  inconvenience,  in  consequeuce  of  the  nice  distinctions, 
and  numerous,  and  sometimes  contradictory  decisions,  to 
which  it  has  given  rise.  (1) 

Confession        jf  ^  jn'isoner's   examination  before  a   magistrate  be   taken 

admissive,  upou  Oath,  it  caunot  be  received  in  evidence  as  a  judicial  ex- 
amination :  (2)  and  it  seems,  in  such  a  case    evidence    could 

to  the  ownership  of  a  vessel,  was   nega-  says,  that  the    slightest   hopes   oT  mercy 

lived  by  liie  ship  registracy  Act.      So  al-  lield  out,  would   invalidate  a   confession, 

so  as  to  the  confession  of  a    valid    mar-  On  the  other  hand,  it  has  been    said    by 

riage.  IMr.  Justice  Parke,  that  the   doctrine    of 

(4)  The  rule  extends  to  all  statements  inducements  has  been  carried  to  the 
by  a  prisoner,  which  may  affect  him  verge  of  common  sense.  On  this  sub- 
criminally,  though  in  terms  they  charge  jecl,  see  Bentham's  Rationale  of  Judici- 
another  person.  Rex  v.  Enoch,  5  C.  i^  al  Evidence,  Jurist,  No.  7,  vol.  xl.  Ed. 
P.  540,  or  purport  to  be  a  refusal  to  con-  Rev.  p.  166,  169. 
fess,  Rex  V.  Tyler,  1  C,   §•  P.  129,  n.  (2)   Rex  v.  Smith    and    Homage,    I 

(1)  In  Rex    I'.    Row,  R.    &  R.  Cr.  St.  242.      Rex   v.   Rivers,   7  C.  4-    P. 

Ca.  153.     Lawrence  J.,  stated,  that    he  176.     Upon  the  principles  applicable   to 

had  reserved  several  points  on  the    sub-  the  law    of  secondary    evidence,    proof 

ject    of  confessions,    in    consequence    of  was  in  these  cases  refused,   for    tiio    pur- 

ihe    ohacuriti/     and     discoidancy^   of  pose  of  shewing   that    the  witness  was 

the  authorities.     In  Rex  rn  Thompson,  not  sworn.     15.  N.  P.  242.     Hawk.    P. 

Leach,  292,  the  Court  say,  that    it  is  al-  C,  b,  2,  c.   46,  s.    37.     Kelynge,    2  — 

most    impossible    to    be  too  careful  upon  7  Geo.  4,  c.  64,  .s.  2.    It  may  be  doubt- 

this  subject,  and  that   too    great    nicety  ed  how  far    the   circumstance  of  a    pris- 

could  not  be   preserved  upon  it;    and    in  oner  being  sworn  is  calculated  to  induce 

Rex  V.  Cass,  Leach  293,  11.,  Gould    J.,  him  to  make  an  untrue  confession. 


10  id.  477.    Not  satisfactory  unless  corroborated  by  the  circumstances  in  the 
case.    Malin  v.  Malin,  1  VVeiid.  625:  Law  v.  Merrills,  G  Wend.  277. 


Sect.  2.]  Confessions.  385 

not  be  given,  as  at  common  law,  of  the  confession.  (3)  If  has 
been  held,  that  the  examination  of  a  bankrupt  upon  oath  ta- 
ken before  commissioners  was  not  receivable  in  evidence.  (4) 
Where  a  prisoner,  among  other  persons,  was  *summoned  be-  [  *425  ] 
fore  a  committing  magistrate  upon  an  investigation  in  a  mat- 
ter of  felony,  (no  person  being  specifically  charged  with  the 
cllence,)  and  the  prisoner  was  sworn  and  made  a  statement, 
and  at  the  conclusion  of  the  examination  was  committed  for 
trial,  this  statement  was  not  received  against  the  prisoner,  on 
the  ground  of  its  having  been  made  at  the  same  time  as  all 
the  other  depositions  and  on  the  same  day  upon  which  he 
was  committed.  (1)  And  where  one  of  several  persons  was 
examined  by  the  committing  magistrate  as  a  witness  against 
the  others,  upon  a  charge  of  felony,  and,  after  being  examined 
by  him,  committed  to  take  his  trial,  it  was  held,  that  what  he 
said  as  a  witness  could  not  be  used  against  him  upon  the  crim- 
inal charge.  (2)  The  principle,  however,  of  these  decisions  Admissi- 
appears  qn.estionable,  as  the  prisoner  in  his  capacity  of  a  wit- 
ness might  have  refused  to  answer  any  questions  having  a 
tendency  to  expose  him  to  a  criminal  charge.  Accordingly, 
where  a  prisoner  had  been  examined  upon  oath  on  a  charge 
against  another  person,  Parke,  B.,  received  the  evidence  of  the 
examination  as  a  confession.  (3)  And  it  would  seem,  that 
generally  a  statement  upon  oath  by  a  person  not  being  a  pris- 
oner at  the  time,  and  the  statement  not  being  compulsory, 
might  be  used  in  evidence  against  him  on  a  criminal 
charge.  (4)  Where  a  prisoner  before  the  committing  magis- 
trate was  sworn  by  mistake,  being  supposed  to  be  a  witness, 
but  his  deposition  was  afterwards  destroyed,  and  he  was  cau- 
tioned, a  subsequent  statement  which  he  made  was  held  re- 
ceivable. (5)  An  afiidavit  by  a  prisoner  made  in  a  suit  in 
Doctors'  Commons,  has  been  read  against  him.  (6) 

It  is  not  necessary  to  the  admissibility  of  a  confession,  that  ^'•';'>""<'  "f" 
it  should  be  spontaneous,  it  will  be  received  notwithstanding 
it  has  been  elicited  by  means   of  spiritual   exhortations  by  a  ■'^pin'"^' i"- 
*clergyman,  (1)  (a)  or  by  a  person  not  a  clergyman,  and    ad-  r  *42(3  i 

(3)  See  Rex  t).  Lewis,  6  C.  &  P.  162.     deeds,  not  being  evidence.  7  &   8   Geo. 
Tiie    point    belongs  to    the    doctrine   of    4,  c.  29,  s.  22,  23,  24. 

secondary  evidence.  (3)   Uowarth's    case,    Greenw.    Col. 

(4)  Rex  I'.  liritton,  1  M.  8,-  Ro.  297.     138,  n. 

F'lrfe  SM/jra,  in  Hex  u.  Merceron,  2    St.         (4)   Rex  r.  Tut)by,   .'J  C.  4^   R-    -''SO, 

366,  a  compulsory  examination  before  a  referred  to  in  Rex  w.  Lewis,  6  C.    iV    I*. 

Committee  of  the  House  of    Commons  162. 
was  received  on  trial  for  a  misdemeanor.  (.5)  Rex  r.  AVeljh,  4  C.  8f  V.  .564. 

(1)  Rex  V.  Lewis  6  C.  4-  i'.  162.  (6)  IJex  v.  Walker,  cited  by  Gurney, 

(2)  Rex  f.  fJavis,  6    C.    .^    P.    177;  P.,  6  C    &,-  P.  162. 

and  see   as  to  the   examinations  of  per-         (1)   Gilliam's    case,     1     I*.In.    Cr.    V,. 
sons  indicted  for  stealing   a  will  or  title-     186. 

(o)  If  a  member  of  a  church  makes  a  voluntary  confession  to  Jiis  brethren, 
such  confession  may  be  given  in  evidence  against  him  on  tiic  trial  of  lui  lu- 
49 


386 


Hearsay  Evidence. 


[Ch.   18. 


Inloxica- 
liou. 


Deception 
used. 


dressed  to  a  prisoner  of  tender  years.  (2)  It  seems  that  exhor- 
tations, simply  to  speak  the  truth,  will  not  invalidate  a  con- 
fession, but  that  in  such  cases,  where  the  motives  suggested 
to  the  prisoner  are  not  shewn  to  have  been  of  a  spiritual  nat- 
ure, slight  proof  of  temporal  inducements  will  avoid  it.  (3) 
Even  where  a  constable  gave  liquor  to  a  prisoner  for  the  pur- 
pose of  obtaining  a  confession,  and  the  prisoner  confessed 
whilst  under  the  effects  of  intoxication,  it  was  held  that  the 
confession  was  receivable,  however  little  it  might  weigh  with 
a  jury.  (4)  A  promise  by  a  constable  to  a  prisoner,  that  if  he 
would  confess,  he  should  see  his  wife,  has  been  held  not  to 
render  inadmissible  a  confession  made  in  consequence  of  such 
promise,  )io  hope  of  favour  being  held  out  as  to  the  charge 
upon  which  the  prisoner  was  in  custody.  (5) 

The  circumstance  that  some  deception  has  been  practised, 
in  order  to  obtain  a  prisoner's  confession,  will  not  render  it  the 
less  receivable  in  evidence  :  as  where  a  person  promised  a 
prisoner,  that  what  he  had  to  say  should  go  no  further  ;  (6) 
and  where  one  took  an  oath  to  that  effect :  (7)  so  where 
a  prisoner  asked  the  turnkey,  if  he  would  put  a  letter 
in  the  post,  and  upon  his  promising  that  he  would  do  so,  gave 
him  the  letter  which  was  detained  by  the  turnkey,  and  given 
in  evidence  as  a  confession  :  (8)  So  where  artifice  was  used 
to  induce  a  prisoner  to  suppose  that  some  of  his  accomplices 
[  *427  1  were  in  custody,  under  which  ^mistaken  supposition  he  made 
a  confession.  (1)  Where  a  constable,  in  order  to  extract  a 
confession,  assumed  the  prisoner's  guilt,  asking  her  how  she 
came  to  poison  her  uncle,  the  confession  in  answer  was  re- 
ceived. (2)  In  these  cases,  there  was  no  reason  to  suppose, 
(which  is  the  main  point  to  be  considered,)  that  the  induce- 
ment held  out  was  calculated  to  make  the  confession  an  un- 
true one. 


(2)  Wild's  case,  1  Mo.  Cr.  C.  455. 
The  Court  disapproved  of  the  manner 
in  which  the  confession  had  been  ob- 
tained. See  Rate's  case,  Chetw.  Burn, 
tit.  Confession.  2  Russ.  648.  The  ques- 
tion, whether  the  inducement  was  of  a 
temporal  nature  or  not,  which  is  some- 
times a  nice  question  of  fact,  is  for  the 
decision  of  the  judge,  ib. 

(3)  Rex  V.  Court,  7  C.  ^  P.  486, 
where  the  magistrate  said,  "  be  sure  to 
tell  the  truth,"  the  statement  was  admit- 
ted. Rex  V.  Shepherd,  7  C.  ^  P.  579, 
where  the  constable  said  "  you  had  bet- 
ter not  add  a  lie  to  the  crime  of  theft," 
the  statement  was  rejected. 


(4)  Rex  V.  Spilsbory,  1  C.  SfV.  J  87. 

(5)  Rex  V.  Thomas,  6  C.  ^  P.  353. 
In  Rex  r.  Green,  6  C.  ^  P.  656,  the 
prisoner's  statement  was  received,  after 
his  saying,  that,  "  if  iiis  handcuff's 
were  taken  oil'  he  would  tell."  Taun- 
ton, J.,  observed,  that  he  believed  that 
no  man  ever  makes  a  confession  volun- 
tarily, without  proposing  to  himself 
some  advantage  to  be  derived  from  it. 

(6)  Rex  V.  Thomas,  7  C.  ^  P.    345. 

(7)  Rex  V.  Shaw,  6  C.  .^  P.  373. 
(S)  Donington's  case  2  C.  If   P.  418. 

(1)  Burley's  case,  East  7,  1818. 

(2)  PerLittledale,  J.,  Warwick,  Ass. 


dictment  for  tlie  offence  confessed.  Commonwealth  v.  Drake,  15  Mass.  1  61 
Here,  the  confession  was  made  to  tiic  church,  of  wliich  defendant  was  a 
member,  and  when  none  but  church  members  were  present. 


Sect.  2.] 


Confessions. 


387 


A  confession,  obtained  without  threat  or  promise,  has  been 
received,  notwithstanding  it  was  elicited  by  questions  put  by 
a  police  officer.  (3)  In  like  manner  the  examination  of  a  pris- 
oner before  a  magistrate,  consisting  of  answers  to  questions 
put  by  the  magistrate  is  receivable.  (4) 

It  was  ruled  in  one  case,  by  Holroyd,  J.,  that  the  fact  of  a 
confession  having  been  made  by  a  person  whilst  in  unlawful 
custody  rendered  it  unavailing,  but  this  doctrine  cannot  be 
considered  as  satisfactorily  established.  (5) 

*It  does  not  appear  necessary,  in  order  to  render  the  exam- 
ination of  a  prisoner  admissible  in  evidence  against  him,  that 
he  should  be  cautioned  by  the  magistrate,  not  to  expect  any 
tavour  from  making  a  confession,  or,  if  any  one  has  told  him 
it  will  be  better  for  him  to  confess,  or  worse  for  him  if  he 
does  not,  that  he  must  pay  no  attention  to  it,  and  that  any 
thing  said  by  him  against  himself  will  be  used  against  him 
at  his  trial.  (1)  It  has,  indeed,  been  frequently  said,  that  it 
is  the  duty  of  the  magistrate  to  use  such  cautions  ;  but  the 
propriety  and  expediency  of  such  a  course  may  be  open  to 
considerable  question.     It  is  at    all    events   improper   in   the 


Confes- 
sion  oh- 
taiiied  by 
questions. 


Confession 
during  ille- 
gal cuslo- 

dy. 

Caution  by 
niajjisirate. 

[  *428  ] 


(3)  Rex  r.  Thornton,  1  Mo.  Cr.  Ca. 
27.  The  Prisoner  was  a  boy,  14  years 
old,  and  the  confession  was  made  after 
he  had  been  without  food  for  nearly  a 
wh^le  day.  Tlie  constable  frequently 
told  him  that  there  N.as  no  doubt  of  his 
being  guilty,  and  repeatedly  asked  him 
who  was  concerned  wilh  him.  Rex  v. 
Shaw,  6  C.  &  P.  373,  questions  by  a 
fellow  prisoner. 

(4)  Rex  t-.  Ellis,  R.  &  M.  432 — 
Rex  V.  W'ilson,  Holt,  597,  contra, 
which,  together  with  a  case  decided  by 
Holroyd  J.,  were  referred  to.  Rex  v. 
Bartle'lt,  7  C.  &  P.  S32. 

(5)  Ackroyd  &  Warburton's  case, 
Lewin,  49.  See  Thornton's  case, 
Lewin,  49.  1  INIo.  Cr.  Ca.  27,  where 
the  legality  of  the  detention  was  consid- 
ered doubtful,  by  Bayley,  J.  The  fol- 
lowing inducements  have  been  held  to 
invalidate  confessions:  Prosecutor  sta- 
ting, "  that  he  only  wanted  his  money, 
and  if  the  prisoner  gave  him  that,  he 
might  go  to  the  devil  if  he  pleased." 
]tex  u.  Jones,  R.  &  R.  Cr.  Ca.  152. 
A  threat  of  committal  to  prison.  Rex  i'. 
Parratt,  5  C.  &  P.  570.  Prosecutor 
saying,  "  Unless  you  will  give  ine  a 
more  satisfactory  account,  I  will  tako 
you  before  a  magistrate  "  Rex  v. 
Thompson,  I>each,  292.  "  I  should  be 
oI)li''ed  to  you  if  you  would  tell  us  what 
you  know  about  it,  if  you  will  not,  we, 
of  course  can  do  nothing."  Rfx  v. 
Partridge,  7  C.  &  P.  551,"  You  had  bet- 
ter eplit,  and  not  sud'er  for  all  of  them." 


Rex  r.  Thomas,  6  C.  4-  P.  353.  "  It 
would  have  been  better,  if  you  had  told 
at  first."  Rex  v.  Walkley,  6  C.  &  P. 
175.  "  It  is  of  no  use  for  you  to  deny 
it,  for  there  is  the  man  and  boy  who  will 
swear  they  saw  you  do  it."  Rex  ». 
Mills,  6  C.  &  P.  146.  Where  a  pris- 
oner desired  another  person  to  apply  to 
a  justice  to  admit  him  a  witness  for  the 
crown,  and  at  the  same  lime  states  facts. 
Hall's  case,  Leach  559,  n.  "  Unless 
you  give  me  a  more  satisfactory  account, 
I  will  take  you  before  a  magistrate." 
Thompson's  case.  Leach  292.  Prisoner 
saying,  "  If  you  will  give  me  a  glass  of 
gin,  1  will  tell  you  all  about  it;"  the  of- 
fer coming  from  the  prisoner.  Sexton's 
case,  Chetw.  Burn. 

The  following  inducements  have  been 
held,  not  to  invalidate  a  confession: 
Where  a  magistrate  told  a  prisoner  that 
his  wife  had  confessed,  and  that  there 
was  quite  case  enough  against  him  to 
send  a  bill  before  a  gr^itid  jury.  Wright's 
case,  Lewin  4S.  Where  a  prisoner 
charged  with  arson  was  told  that  there 
was  a  very  serious  oath  laid  against  her, 
by  a  person  who  saw  her  set  lire  to  the 
rick.  Long's  case,  6  C.  k  P.  179.  It 
seems  that  the  confession  of  a  person, 
admitted  as  King's  evidence,  may  be  re- 
ceived against  linn,  if  he  refuse  lo  give 
evidence  on  the  trial  of  his  accomplices. 
Burloy's   case.  Slark.  Lv.  part  iv. 

(1)  Rex  V.  Mngill,  Macn.  .'JS,  that 
the  evidence  is  receivable,  though  no 
caution  has  been  "iven. 


388  Hearsay  Evidence.  [Ch.  18. 

magistrate  to  dissuade  a  prisoner  from  making  a   voluntary 
confession.  (2) 
Induce-  Some  rulcs  may  be  collected  from  decisions  of  a  recent  pe- 

ni6ut  bv  •  • 

whom.  riod,  with  regard  to  the  admissibility  of  confessions,  where  in- 
ducements of  hope  or  fear  have  been  offered  to  the  prisoner 
by  the  prosecutor,  by  persoiLs  in  authority,  or  by  strangers. 
The  principle  of  some  of  the  decisions  upon  this  subject  ap- 
pears to  be  that  an  inducement,  held  out  by  a  person  having 
no  authority,  would  not  be  likely  to  induce  a  prisoner  to 
make  an  unfonnded  confession  to  such  person,  before  whom 
he  would  be  particularly  cautious  as  to  what  he  stated  to  his 
own  disadvantage.  Thns  in  Rex  v.  Row,  (3)  where  some 
of  the  prisoner's  neighbours,  who  had  nothing  to  do  with  his 
apprehension,  prosecution  or  examination,  had  admonished  the 
prisoner  to  tell  the  truth  and  consider  his  family,  it  was  held, 
that  a  confession  was  receivable,  on  the  ground  that    the    ad- 

[  *429  ]  vice  to  confess  *was  not  given  or  sanctioned  by  any  person 
who  had  any  concern  in  the  business.  It  is  to  be  observed, 
that  the  advice  was  given  to  the  prisoner  when  he  was  in  the 
custody  of  a  constable,  who  made  no  observation  upon  it,  nor 
did  the  prisoner  answer  at  the  time,  but  he  confessed  to  the 
constable  in  about  an  hour  afterwards  :  and  this  case  has  been 
followed  by  other  decisions  to  the  like  effect,  (1)  But  where 
there  is  ground  to  suppose  that  the  constable  appeared  to  the 
prisoner  to  sanction,  though  tacitly,  an  inducement  made  in 
his  presence,  it  appears  to  have  been  doubted,  whether  the 
evidence  ought  to  be  received.  In  the  recent  case  of  Rex  v. 
Pountnei/,  (2)  a  prisoner  being  in  the  custody  of  a  constable 
upon  a  charge  of  felony,  was  taken  by  the  constable  to  an  inn, 
where  innkeeper,  in  the  hearing  of  the  constable,  held  out  an 
inducement  to  confess,  whereupon  the  prisoner  confessed  in 
the  constable's  hearing.  Mr.  Baron  Alderson  received  the  ev- 
idence, observing,  that  he  did  so  in  deference  to  authorities, 
but  that  he  entertained  a  strong  opinion  against  it's  admissi- 
bility, and  that,  if  it  had  been  neces.sary,  he  would  have  re- 
served the  point  for  the  opinion  of  the  Judges.  And  from  a 
very  recent  case,  it  seems  also  to  be  matter  of  doubt,  wheth- 

(2)  See  per  Gurney,  B.,   in    Rex   v.     escaping,    is    a   person  in  authority   for 
Green,  5  C.  &  P.   312.  thi..^  purpose.     Rex  v.  Enoch,  5  C.  ^  P. 

(3)  R  ^  R.  Cr.  Ca.  153.  539. 

(1)   Gibbons,  1  Rex  v.  Gibson,    1    C.         (2)   7  C,  &P.  303.     It  is  to    be    ob- 

&    P.  97.     The    confession    was  some-  served,  that  the  confession  was  made    to 

time    after   the    inducement.        Rex    v.  the  person  who  held  out  the  inducement, 

Hardwick,  cited  ib.  9S,    n.,  where    the  and  that  the  confession  was    not,  as    in 

inducement  was  held  out  by  the    consta-  Rex  v.  Row,  made  to   the  constable,  at 

ble's  wife.     Rex  v.  Tyler,  1    C.    &    P.  an  interval  after  the  inducement,    and  in 

129.     In  Rex  v.  Richards,  5    C.    <^    P.  the  absence  oftlie  party  who  held  it  out, 

31 S,    the    inducement  was   at  an    end,  consequently  there  do  not    appear  to    be 

when  the  prisoner  was   delivered   to  the  any  autlioriiies   requiring   the    reception 

constable.       A    woman  placed    with  a  of  the  evidence, 
prisoner,  by  a  constable,  lo  prevent  her 


Sect.  2.]  Confessions.  389 

er  a  confession  is  receivable  in  evidence,  if  it  has  been  made 
to  a  person,  in  consequence  of  threats  or  promises  held  out  by 
him,  although  he  may  have  nothing  to  do  with  the  apprehen- 
sion, the  prosecution,  or  the    examination  of  the  prisoner.  (3) 

*For  the  purpose  of  introducina;  a  confession   in  evidence,  Ne^rativing 

.     .  '■        '■      .  ,  Y  1  •  liiducemeiU 

It  IS  unnecessary,  ni  general,  to    do  more    than   negative  any  by  other 
promise  or  inducement  held  by  the  person  to   whom  the  con-  'r'^^''.o:-j  n 
fession  was  made.  (1)       However,    if  there  be    any  probable  t       ^    J 
ground  to  suspect  collusion  in  obtaining  the  confession,    such 
a  suspicion  ought  in  the  first  instance,  to  be  removed.   Where 
a  constable,  who  had  a  prisoner  in  custody,    left   the    room  in 
which  the  prisoner  was  detained,  and,  upon  another  constable 
entering  the  room,  the  prisoner  at  once  made  a  statement  with- 
out any  caution  being   given  him,   it  was  held  necessary  for 
the  prosecutor  to  call  the   first  constable,  for    the   purpose  of 
disproving  any  collusion.  (2) 

Where  an  inducement  has  been  held  out  by  a  prosecutor,  induce- 

,  .  ...  ,,  •!!  nieiit  by 

or  by  a  person  in  authority,  it  would  seem,   in  general,   that  a  person  m 
subsequent  confession  to    such  persons,  would  not  be  receiva-  au'i'f'i'.v- 

ble.   (^o)  caution. 

Althongh  an  inducement  has  been  held  out  by  a  prosecutor, 
constable,  or  other  person,  if  the  prisoner  is  afterwards  taken 
before  a  magistrate,  who  forewarns  him  that  what  he  says 
against  himself,  will  be  given  in  evidence  against  him,  a 
confession  made  to  the  magistrate,  after  such  caution,  will  be 
receivable.  (4) 

*In  a  case,  tried  before  Mr.   Justice  Bayley,  (5)    where  it  [  *431  ] 
appeared  that  the  prisoner,  on  being  taken  into    custody,   had 
been  told  by  a  person  who  came  to  assist  the  constable,    that 
it  would  be  better  for  him  to  confess,  but  that,  on   his    being 
examined  before  the  committing  magistrate  on  the   following 

(3)  in  Rex  v.  Spencer,  7  C.  4'  P-  to  call  the  person  with  whom  the  pris- 
776,  Parke,  B.,  said,  that  he  would  re-  oner  had  previously  conversed,  who 
ceive  such  evidence,  but  would  reserve  was  a  clergyman  and  man'tstrate. 
the  point,  as  there  was  a  ditlerence  of  (2)  Rex  v  Swatluns,  4  C.  &  P.  .'jSO. 
opinion  aii.ong  llie  Judges  upon  the  sub-  It  was  afterwards  shewn  that  the  pris- 
ject.  Simpson's  case,  1  Mo.  Cr.  C.  412.  oner  was  not  under  any  ciiargo  at  the 
The  threats  and  promises  were  olFered  time,  but  that  the  first  constable  was  dc- 
by,  and  the  confessions  made  to,  the  taining  hiai  as  an  unwilling  witness,  and 
mother  of  the  wife  of  the  prosecutor:  the  evidence  was  received. 
Rex  V.  Upchurch,  1  Mo.  Cr.  Ca.  465,  (3)  Hee  Rex  v.  Nute,  Chetw.  Burn. 
The  promises  were  ofTered  by,  and  the  confession,  2  Russ.  648.  Rex  v.  Sex- 
confession  made  to,  the  wile,  of  the  ton,  ib.  2  East's  P.  C.  658.  White's 
prosecutor.     Rex  v.  Dunn,  4   C.    §•   P.  case,  M.  T.  1800. 

543.  Rex  v.  Kingston,  4  C.  P.  387,  (4)  Rex  v.  Howes,  6  C.  &  P.  404. 
where  the  confession  was  made  to  a  sur-  It  does  not  appear  whether  generally  a 
geon.     Rex  v.    Slaughter,    4    C.    4"    P.  caution    by  a  person  will  make    ii    con- 

544,  n.  It  may  happen  under  paiticu-  fession  to  him  admissible,  iiotwithslaiid- 
lar  circumstances  that  a  second  confession  ing  a  previous  inducement  by  himself  or 
to  the  same  per-ion,  may  be  voluntary,  by  a  jierson  of  the  same  or  inferior  au- 
though  the  first  was  not  so.  thority. 

(1)  Hex  r.  Clewes,  4   C.  &  P.    223.         (5)  Rex  u.  Lingate,  Derby,  Lent  Ass, 
It  was  said,  to  be  fair  in  iho  prosecutor     1815. 


390  Hearsay  Evidence.  [Ch.   18. 

day,  lie  was  frequently  cautioned  by  the  magistrate  to  say 
nothing  against  himself,  a  confession  under  these  circumstt.n- 
ccs  before  the  magistrate  v;as  Jielu  to  be  clearly  admissible. 
In  another  case  it  appeared  that  a  constable  told  tlie  prisoner, 
he  miglit  do  himself  some  good  by  confessing  ;  the  prisoner 
afterwards  asked  the  magistrate,  if  it  wonld  be  any  benefit  to 
him  to  confess  ;  on  which  the  magistrate  said,  he  could  not 
say  it  wonld,  and  the  prisoner  then  declined  confessing  ;  but 
aftsrwards,  in  his  way  to  prison,  he  made  a  confession  to  anc:;h- 
er  constable,  and  he  confessed  again  in  prison  to  another  mag- 
istrate ;  the  Judges  were  unanimous  in  holding,  that  the  con- 
fessions were  admissible  in  evidence,  on  the  ground  that  the 
magistrate's  answer  was  sufiicient  to  efface  any  expectation 
which  the  constable  might  have  raised.  (1) 

It  is  no  objection  to  a  confession  before  a  magistrate,  that 
the  prosecutor,  who  was  present,  first  suggested  to  the  jiriso- 
ner  that  he  had  better  speak  out,  when  the  magistrate,  or  his 
clerk,  immediately  checked  the  prosecutor,  desiring  the  priso- 
ner not  to  regard  him,  but  to  say  what  was  proper,  (2) 

It  has  been  held,  that  a  caution  by  a  magistrate  was  suffi- 
cient to  render  a  confession  receivable  in  evidence,  notwith- 
standing there  may  have  been  some  inducement  before  held 
out,  to  which  the  magistrate  did  not  advert,  and  of  which  he 
may  have  been  ignorant.  (3) 

[  *432  ]  *If  a  person  of  superior  authority,  as  a  magistrate,  holds 
out  an  inducement  to  confess,  a  confession  afterwards  to  a 
person  of  an  inferior  authority,  as  a  turnkey,  seems  not  to  be 
admissible.  Such  a  confession  hr.s  been  held  not  to  be  re- 
ceivable, in  a  case  where  the  inferior  officer  had  not  cautioned 
the  prisoner.  (1) 

fouTd  "^'"^  Though  a  confession  may  have  been  obtained  by  means  of 

undue  inducement,  yet  if  in  consequence  of  the  information  ob- 
tained from  the  prisoner,  property  stolen  is  (]iscovered,it  is  com- 
petent to  give  in  evidence  the  fact  that  the  property  has  been 
discovered  conformably  with  the  prisoner's  information.  The 
statement  as  to  his  knowledge  of  the  place  where  the  property 

(1)  Rex  'B.  Rosier,  Easter  Term,  made,  read  it  over  before  the  mngistrate, 
1821,  MS.  Rex  v.  Clewes,  4  C,  &  P.  who  cautioned  the  prisoner.  And  the  pris- 
225,  where  the  inducement  was  by  a  oner  said  that  it  was  the  truth  and  signed 
magistrate  and  clergyman,  the  caution  the  paper.  See  the  preceding  cases  of 
by  a  coroner,  and  there  was  a  letter  Rex  v.  Lingate,  and  Rex  v.  Rosier, 
from  the  Secretary  of  State  refusing  (1)  Rex  v.  Cooper  .5  C.  &.  P.  53.5. — 
mercy.  This  decision  follows   a  fortiori   from 

(2)  Edward's  case,  East.  Term,  the  cases,  according  to  which  examina- 
1802.  tions  befere  magistrates  have  been    inva- 

(3)  Rex  V.  Howes,  6  C.  i^  P.  404.  lidated  in  consequence  of  previous  in- 
The  magistrate  knew  of  the  former  con-  ducements.  It  would  seem  that  a  con- 
fessions, did  not  tell  the  prisoner  that  it  fession,  after  caution  by  a  person  of 
would  have  no  effect,  but  cautioned  equal  authority  with  the  person  holding 
him  generally.  Sexton's  case,  Chetw.  out  the  inducement,  would  be  receivable. 
Burn.  tit.  Confession  was  obtained  by  but  this  has  not  been  expressly  determin- 
^givinggin.     The  officer,  to  whom  it  was  ed. 


Sect.  2.]  Confessions.  391 

is  to  be  found,  being  confirmed  by  the  fact,  is  thus  proved  to 
be  true,  and  not  to  have  been  fabricated  in  consequence  of  any 
inducement.  It  is  competent  therefore  to  inquire  whether  the 
prisoner  stated  that  the  property  would  be  found  by  searching  a 
particular  place  or  person,  and  to  prove  that  it  was  found  ac- 
cordingly ;  but  it  would  not  be  competent  to  inquire,  wheth- 
er the  prisoner  acknowledged  that  he  had  concealed  the  prop- 
erty. (2) 

Where  inducements  to  confess  have  been  held  out,  and  the  f.ispovery 

r  •  11-  1  t      *       .1  ol  property. 

prisoner  has,  m  consequence,  delivered  property  to  the  prose-  Comempo- 
cutor,  it  appears  somewhat  doubtful,  whether  the  declarations  ^^"''°y^  e-^- 

.     .^  }  ^  .  ,11-  /•   .1  pressioiis. 

01  the  prisoner  accompanying  the  delivery  oi  the  property, 
and  tending  to  identify  it  as  belonging  to  the  prosecutor,  are 
receivable  in  evidence.  It  may  be  thought,  that  the  only 
ground  upon  which  such  declarations  can  be  received  is,  *that  [  *433  ] 
they  are  explanatory  of  the  act  of  delivery,  and  not  a  narra- 
tive of  a  past  transaction.     In  Rex  v.    Griffin.,  (1)  a  prisoner 

was  charged  with  stealing  a  guinea  and  two  promissory  notes  : 
after  inducements  to  confess,  it  was  held  that  the  prosecutor 
might  prove,  not  only  that  the  prisoner  brought  him  a  guinea 
and  a  note,  but  that  he  also  gave  them  up,  as  the  guinea  and 
one  of  the  notes  that  had  been  stolen  from  him.  But  in  Rex 
v.  Jones,  (2)  when  the  prosecutor  asked  the  prisoner  for  the 
money  which  the  prisoner  had  taken  out  of  his  pack,  and  at 
the  same  time  held  out  inducements  to  confess,  whereupon 
the  prisoner  produced  a  sum  of  money,  stating,  that  it  was  all 
he  had  left  of  it,  it  was  held  that  this  evidence  ought  not  to 
have  been  received. 

If  a  confession  is  improperly  obtained,  it  is  a  ground  not  Acts  done 
only  for  excluding  evidence  of  the  confession,  but  also  of  any  '"  consc- 

■'-,  .  °  .,  .  IT  •  (lueiice  of 

act  done  in  consequence  by  the  prisoner  towards  discovering  i„ciuce- 
the  property,  the  property  not  having  been  actually  discover-  "'*-'"^' 
ed  thereby ;  for,  as  was  observed  by  the  Court,  the  influence 
which  might  produce  a  groundless  confession,  might  also  pro- 
duce groundless  conduct.  Thus,  where  a  prisoner  was  induc- 
ed by  a  promise  from  a  prosecutor  to  confess  his  guilt,  and  af- 
ter that  confession  he  carried  the  officer  to  a  particular  house, 
as  and  for  the  house  where  he  had  disposed  of  the  property, 
and  pointed  out  the  person  to  whom  he  had  delivered  it  ;  the 
person  denied  knowing  any  thing  about  it,  and  the  property 
was  never   found  :  it    was  held,  that  the   evidence  of  what 

(2)  Butcher's  case,    Leach,    265,    n.  formerly   to  have  been  thought,  that  no 

2  East's  V.  C.  (158.  Warvvickshall's  part  of  tho  corifi;ssioii  could  lie  jjiveii  in 
case,  Leach,  298,  300.  Lockhart's  evidence,  but  only  the  actual  discovery 
case.      Leach      38().       Morey's      case,  of  the  property. 

Leach,  2fi.5,  n.   Rex  u.  Harvey,  2  East's  (1)    II.  &  II.  Cr.  Ca.  1.51. 

P.  C.  638.     Jtexw.  (irant,    and  Hex  v.         (2)  R.  Sf  R.  Cr.  Cu.  152. 
Ilodge,  2  East's  V.  C    058.     It  Beeiiis 


392  Hearsay  Evidence.  [Ch.   18. 

passed  between  the  prisoner  and  the  officer  ought  not  have 
been  received.  (3)  (a) 
lini'lT  With  respect  to  the  prisoner's  liability  to  be  affected  by  the 

anoiiicr.  (b)  confessioiis  of  othcrs,  a  marked  distinction  exists  between  the 
branch  of  law  now  under  consideration,  and  that  which  has 
been  considered  in  treating  of  admissions.  Where  two  per- 
[  *434  ]  sons  were  indicted  together,  one  for  stealing  and  another  *for 
receiving,  in  which  the  principal  pleaded  guilty,  and  the  re- 
ceiver pleaded  not  guilty.  Baron  Wood  refused  to  allow  the 
plea  of  guilty  to  establish  the  fact  of  the  stealing  by  the  prin- 
cipal as  against  the  receiver.  (1)  And  in  a  recent  case,  the 
confession  of  tlie  principal  felon  before  a  magistrate  was  held 
to  be  inadmissible  against  the  receiver.  (2) 

Upon  trials  for  treasonable  and  other  conspiracies,  several 
nice  questions  have  arisen  respecting  the  admissibility  of 
statements  made  by  co-conspirators.  These  have  been  ad- 
verted to  in  treating  of  the  distinction  between  original  and 
hearsay  evidence.  Such  statements  are  receivable,  when 
they  are  in  the  nature  of,  or  when  they  accompany,  acts  for 
which  all  the  parties  concerned   in  the  conspiracy  are  respon- 

(3)  Rex  U.Jenkins.  R.,^R,  Cr.Ca.492.  (2)  Turner's  case,     IMo.    Cr.     Ca. 

A  confession,  made  in  consequence  of  a  348j     Tiie  principal  was  alive,   but   the 

previous  confession    to    another    person,  decision  does  not    appear  to   have    been 

made  under  inducement,  held  not  admis-  founded    on    this    circumstance.       The 

sible  in  Nate's  case  2  Russ.  64S.  point  had  not  been  previously    settled. — 

(1)  Cited  in  Turner's  case,  1  Mo.  Cr.  Black's  case,  4  C,  ^  P.  377, 
Ca.  348. 


(a)  The  rule  is,  that  when  a  confe.s?ion  has  been  improperly  obtained,  all 
subsequent  confessions  are  inadmissible ;  altliough  they  may  have  been 
made  at  different  times,  and  to  different  persons;  for  the  presumption  is  that 
they  were  made  under  the  same  influence,  or  in  consequence  of  the  former 
confession.  Seethe  observations  of  the  judges  in  0  Pick.  497  and  10  id. 
477.  These  were  the  cases  of  tlie  two  Knapps  indicted  for  the  murder  of 
White,  and  the  material  facts  are,  that  Joseph  had  concluded  to  confess,  and 
that  he  wished  to  procure  the  prisoner's  consent,  which  Phippen  (another 
brother)  advised  him  to  yield  ;  encouragino;  him  with  the  hope  of  a  pardon, 
if  he  should  be  convicted.  Held,  that  after  such  encouragement,  the  con- 
sent of  the  prisoner  to  this  arrangement  cannot  be  given  in  evidence  against 
him.     id. 

A  verbal  confession  of  guilt,  made  by  a  person  accused  of  a  crime,  if  in- 
duced by  a  delusive  hope  of  impunity  excited  in  his  mind,  Avill  not  be  re- 
ceived in  evidence.  5  Hals.  163.  Altliough  an  original  confession  may 
have  been  obtained  by  improper  means,  subsequent  confessions  of  the  same, 
or  like  facts,  may  be  admitted,  if  the  court  believe,  from  the  length  of  time 
intervening,  from  proper  warning,  or  from  other  circumstances,  that  the  de- 
lusive  hopes,  or  fears,  under  the  influence  of  which,  the  original  confession 
was  obtained,  were  entirely  expelled,  id. 

[b)  In  a  prosecution  against  husband  and  wife  for  receiving  stolen  goods, 
the  declarations  of  the  wife  were  admitted,  although  they  were  tried  jointly. 
The  court  said,  that  it  "  was  not  to  operate  against  the  husband."  5  Pick. 
429. 


Sect.  2.]  Confessions.  393 

sible  ;  but  they  are  not  receivable,  when  they  are  in  the  na- 
ture of  narratives,  descriptions,  or  confessions.  (3) 

In  former  times  it  was  usual  to  admit  the  confessions  of 
prisoners,  even  of  such  as  liad  afterwards  been  executed,  as 
evidence  against  others,  and  this  at  a  period  when  torture  was 
not  unfrequently  applied  in  order  to  obtain  confessions ;  as 
for  example,  upon  the  trials  of  Sir  N.  Thrograorton,  the  Earl 
of  Essex,  and  Sir  W.  Raleigh,  and  npon  the  trials  for  the 
Gunpowder  Plot.  (4)  One  of  the  earliest  reported  instances 
of  the  change  of  practice  occurs  in  the  resolution  of  the  Judg- 
es in  Tongas  case.  (5) 

It  apj^ars  to  be  settled  by  late  authorities,  that  where  a 
confession,  ^whether  oral  or  in  writing,  by  one  prisoner  ira-  [  *435  ] 
plicates  other  prisoners  by  name,  the  confession  must  be  prov- 
ed according  to  the  manner  in  which  it  was  made,  and  the 
names  of  the  prisoners  implicated  must  be  mentioned.  On 
such  occasions,  it  is  the  duty  of  the  Judge  to  inform  tlie  jury, 
that  the  confession  ought  not  to  affect  any  one  but  the  person 
who  made  it ;  a  caution  which,  it  may  be  feared,  is  too  often 
unavailing.  (I) 

The  statute  of  the  7  W.  3,  c.  3,  s.  2,  enacts,  "  that  no  per-  P°"''^'''i^'J." 
son  sliall  be  indicted,  tried,  or  attainted,  for  high  treason  or  treason, 
misprison  of  high  treason,  but  upon  the  oaths  and  testimony 
of  tw'o  witnesses,  either  both  of  them  to  the  same  overt  act,  or 
one  of  them  to  one,  and  the  other  of  them  to  another  overt 
act  of  the  same  treason,  unless  the  party  indicted  and  arraign- 
ed shall  willingly  without  violence  in  open  Court  confess  the 
same."  Mr.  Justice  Foster  seems  to  have  been  of  opinion,  (2) 
that  the  legislature  intended  by  this  section  to  require  two 
witnesses  to  the  overt  act  in  all  cases,  except  where  the  pris- 
oner confessed  the  treason  upon  his  arraignment  in  open  Court, 
and  that  to  warrant  a  conviction  there  must  be  jiroof  of  the 
overt  acts  upon  oath  not  merely  proof  of  the  confession  of  the 
overt  acts.  "  But,"  he  adds,  (3)  "  perhaps  it  may  now  be  too 
late   to  controvert  the   authority  of  the  opinion   in  17 IG,  in 

(.3)    Vide  Supra,  Hardy's    trial,    24  (5)  Kel.  18,  res.  5,  tern.    Car.    2.    6 

Howell,    452,    475,    where  Tlieiwaira  Howell,    227.     Hevey's    case,    Leacli, 

letter    was    considered   to    be    a   narra-  235. 

live  merely.  (I)  Hearne's  case,   4   C   i"}- P.  215. 

(4)  See  also  Abingdon's  case,  2  How-  Ciewes' case,  W   225.     Fletcher's  case, 

ell,    l().     Sir   M.     Foster's    Discourses,  I^ewin,  107.     Hall's  case,  I.ewin,  110. 

234,  where  the  practice  is  gei)erally  stig-  I'oster's  case,    ib.    Ilex    v.    W'alkley,  (i 

rnatized.     With  regard   to    torture,   see  C.  ^-  P.  175.     'J'he  practice    has    varied 

notes  nn  fortesfjue,  de  laudibus   legunt  in  this  respect.     Bee  l''letclier's   case,    I 

Au'^line-     Jardiiie  on  tfie  use  of  tenure  C.  i^  P.  250.     'J'he    more  modern  [trac- 

in  llii^land.     Prisoners   were   told     that  tice  has  not  Iieen    always   afiprovcd    of. 

the    trial   per    frent-i   de     hiir    condi-  Ijarstow's  case,  I/ewiti,  110. 

tion,  meant  confessions   of  accnmpliceg.  (2)  See  l'o<t.  Disc.   232,    240,   213. 

In    .Sir  VV.  Raleigh's   case.  Sir  K.  Coke  Willis's  case,  ib.  242.     S.  ('.  S  St.   Tr. 

says,   th;it  the  laio  presumes  a  man  will  254,  255,  fol.  ed.  S.  C.  15  IIowm.'H'h  St. 

not   accuse  himself  for   the    i)iirpo:je   of  Tr.  <)22.    Smith's  case,  I'o.it.  240,  'ii'i. 

accusing  another.  (3)  Foit,  Disc.  213. 

50 


394  Hearsay  Evidence.  [Ch.  18. 

Francia's  case,  warranted  as  it  hath  been  by  later  prece- 
dents." (4)  The  rule  is  now  clearly  settled.  All  the  Judges, 
on  a  conference  preparatory  to  the  trial  of  Francia^  (5)  held, 
that  a  confession  of  the  overt  acts,  if  proved  by  two  witness- 
es, is  proper  evidence  to  be  left  to  a  jury.  The  same  construc- 
tion of  the  statute  was  adopted  in  Greg^s  case,  (6)  by  six 
Judges  against  two:  in  Berioidc's  case,  (7)  by  Lord  Chief 
[  *436  ]  Justice  Willes  and  Sir  Thomas  Abney  against  the  opinion  *of 
Mr.  Justice  Foster ;  and  by  the  Judges  in  the  commission,  on 
the  trial  of  the  rebels  in  1746.  (1)  (a) 

If  the  overt  act  of  high  treason,  alleged  in  the  indictment, 
is  the  assassination  of  the  king,  or  any  direct  attempt  against 
his  life  or  his  person,  it  is  plain  from  the  provision  of  the  stat- 
59&40G.  ute  39  &  40  Geo.  3,  c.  93,  (which  enacts,  that  in  such  cases 
^''^•^^'  the  prisoner  shall  be  tried  according  to  the  same  order  of  trial 
and  upon  the  like  evidence,  as  if  he  stood  charged  with  mur- 
der,) that  a  confession,  proved  by  a  single  witness,  will  be 
sufficient  to  convict  the  prisoner.  And  the  overt  acts  them- 
selves may  be  proved  by  a  single  witness.  In  these  cases  the 
rule  of  the  common  law  is  restored. 

In  all  cases  of  high  treason,  when  the  prisoner's  confesssion 
is  offered  in  evidence  as  confirmatory  of  the  testimony  of  the 
witnesses,  it  is  clearly  admissible,  though  proved  by  a  single 
Proof  of  witness.  (2)  And  with  regard  to  all  facts  merely  collateral, 
coiiaitral  which  do  uot  couducc  to  the  proof  of  the  overt  acts,  it  may 
be  laid  down  as  a  general  rule,  that  whatever  was  evidence  of 
them  at  common  law,  is  still  good  evidence  under  the  statute 
of  William.  (3)  A  confession,  therefore,  of  such  collateral 
facts  is  still  admissible  in  evidence,  though  proved  by  a  single 
witness. 
Principle  From  the  above-cited  cases,  it  appears  now  to  be  an  estab- 
lished rule,  that  a  full  and  voluntary  confession  by  the  pris- 
oner, of  the  overt  acts  charged  against  him,  if  proved  by  two 
witnesses,  is  of  itself  sufficient  evidence  to  warrant  a  convic- 
tion. And,  although  Mr.  Justice  Foster  suggests,  (4)  that 
''the  rule,  for  admitting  a  confession  against  the  prisoner, 
ought  not  to  extend  further  than  to  a  confession  made  during 

(4)  See  Fost.  Disc.  11  n.  (2)  Willis's  case,  8  St.  Tr.  254,   fol. 

(5)  Francia's  case,  1716.  Mr.  J.  ed.  S.  C.  15  Howell's  St.  Tr.  622.  And 
Burnett's  MS,  1  East's  P.  C.  133.  see  Crossfield's  case,  26  Howell's  St. 
Kelynge,   18.  Tr.  56,  57. 

(6)  Greg's  case,  1  East's  P.   C.  134.  (3)  Fost.  Disc.  242. 

(7)  Fost.  Disc.    10.  (4)  Fost.  Disc.  243.     4  Black.  Com. 
(1)  Fost.  Disc.  12   n.   (t)    1    East's    356. 

P.  C.  134. 


(a)  This  high  crime  consists  of  overt  acts,  which  must  be  proved  by  two 
witnesses,  or  by  the  confession  of  the  party  in  open  court.  1  Burr's  Trial, 
13. 


Sect.  2.]  Confessions..  395 

the  solemnity  of  an  examination  before  a  magistrate,  or  before 
some  person  having  authority  to  take  it,  when  the  party  may 
be  presumed  to  be  properly  upon  his  guard  and  apprised  of  it's 
danger,"  no  distinction  of  this  kind  *is  to  be  found  in  the  an-  r  -/07  1 
thorities  before  mentioned.  On  the  contrary,  in  Franrci's  '■  ""* 
case  the  Judges  resolved,  that  the  confession  would  be  evi- 
dence, whether  made  before  a  magistrate,  or  in  the  course  of 
conversation.  (1)  And  there  appears  to  be  no  solid  ground  for 
such  a  distinction  ;  as  confessions  are  admissible  in  trials  for 
high  treason,  precisely  on  the  same  principle  which  made 
them  evidence  at  common  law. 

The  observations  of  Mr.  Justice  Foster  on  the  subject  of 
confessions  in  cases  of  high  treason,  relate  to  the  effect  of  this 
sort  of  evidence,  rather  than  to  it's  admissibility.  "  Hasty 
confessions,"  he  says,  (2)  made  to  persons  having  no  authority 
to  examine,  are  the  weakest  and  most  suspicions  of  all  evi- 
dence. Proof  may  be  too  easily  procured ;  words  are  often 
mis-reported  whether  through  ignorance,  inattention  or  malice 
— it  mattereth  not  to  the  defendant — he  is  equally  affected  in 
either  case  :  they  are  extremely  liable  to  misconstruction  :  and 
withal  this  evidence  is  not,  in  the  ordinary  course  of  things,  to 
be  disproved  by  that  sort  of  negative  evidence,  by  which  tho 
proof  of  plain  facts  may  be  and  often  is  confronted." 


CHAPTER  XIX. 

EXCLUSION  OF    SECONDARY   EVIDENCE. 

The  law  excludes  such  evidence  of  facts  as  from  the  nature  Rule  of 
of  the  thing  supposes  still  better  evidence  behind  in  the  pa:-  *^^'^'"^'""- 
ty's  possession  or  power.     The  rule  has  been  expressed  in 
terms,  that  the  best  evidence  must  always  be   given.  (3)  (a) 

(1)  See  Baraett,  J.,   MSS.   cited,   1         (2)  Fost.  Disc.  243;  and  see  26  How- 
East's  P.  C.  113.     Kelynge,  19.  ell,   108. 

(3)  B.  N.  P.  293. 


(a)  Best  evidence.  The  law  does  not  require  the  strongest  or  all  the  evi- 
dence of  the  matter  in  dispute;  but  it  forbids  that  evidence,  which  from  the 
nature  of  the  case  supposes  better  evidence  which  the  parly  mijjht  obtain. 
Barnuin  i'.  Barniiin,  9  Conn.  ^49.  A  record  or  bond  is  bettor  evidence  of 
their  contents  than  the  testimony  of  any  witness.  Tho  deposition  of  a  man- 
a;Tcr  in  a  lottery  was  oti'ered  to  prove  that  a  certain  ticket  had  drawn  a 
bfank  ;  and  the  deponent  swore  that  he  was  a  inanager  in  the  lottery  ;  that 
he  attended  the  drawing^;  and  that  the  ticket  with  certain  combination  ntim- 
bcrs  drew  a  blank.  Tiiis  deposition  was  objected  to,  on  the  <fround  that  the 
deponent  ou^jiit  not  to  be  admitted  to  swear  that  he  was  apjwinted  a  mana- 
ger, or  to  prove  the  drawing  of  the  numbers,  or  tiiat  this  ticket  drew  a  blank  ; 
especially,  as  the  conditions  and  terms  of  tliis  scheme  had  not  been  proved. 
But  the  court  held  that  it  was  admissible,  id.    The  deponent  was  not  called 


396  Secondary  Evidence.  [Ch.  19, 

Other  writers  have  stated  it  to  be,  that  the  law  requires 
the  highest  proof  of  which  the  nature  of  the  thing  is  capa- 
ble. (4)  {a)  But  tlic  precise  import  of  the  rule  cannot,  perhaps, 

[  *438  ]  be  adequately  comprehended*  without  reference  to  it's  applica- 
tion in  various  instances. 

Principle  fj^j^g  principle  of  the  rule  under  consideration  is  founded  on 

oJ  the  rule.      ,  '  f  ,  ,  .  ,  •  •         i        i 

the  presumption,  that  there  is  sometliuig  in  the  better  evi- 
dence which  is  withheld,  which  would  make  against  the  par- 
ty resorting  to  inferior  evidence,  and  that  this  may  probably 
be  the  reason  for  withholding  proofs  which  apparently  would 
tend  to  strengthen  his  case.  Although,  in  some  instances, 
this  presumption  may  not  be  very  strong,  yet  the  general  ef- 
fect of  the  rule  is  to  prevent  fraud,  and  to  induce  parties  to 
bring  before  a  jury  the  kind  of  eviden.ce  which  is  least  calcu- 
lated to  perplex  or  mislead  them..  ( 1 ) 
Gained''  '^^^^  present  rule  is  satisfied  by  tlie  production  of  the  best 

(4)  Bacon,  Ab.  Ev.  662.  as  to  the  imperfection  of  parol  testimony 

(1)  See  Gilb.  Ev.  13.     B.  N,  P.  593.     concerning  written  instruments. 
See  per  Lord  Tenterd,en,  M.  Sf  M.  258, 


upoij  to  swear  respecting  a  record,  or  to  the  contents  of  any  writingf ;  nor 
was  it  at  all  material  whether  he  was  a  manager  duly  appointed.  All  the 
material  facts  about  which  he  testified  were  as  to  the  drawing  of  the  lottery ; 
and  that  the  ticket  with  a  particular  combination  drew  a  blank.  "Our 
courts  have  gone  much  further  than  this  in  the  trial  of  indictments  for  coun- 
terfeiting the  bank  notes  of  the  banks  in  this  and  the  other  states.  The  tes- 
timony of  persons  conversant  with  such  paper  has  been  received,  and  that 
too  against  the  objection,  tliat  such  testimony  was  not  the  best  which  the 
nature  of  tlxe  case  would  admit  of;  for  that  by  the  books  of  the  banks  it 
could  be  made  certain  whether  those  notes  had  ever  been  issued  by  him." 
By  Daggett,  J.   id. 

(rt)  By  Marshall,  C.  J,  1  Pet.  SOfi;  and  although  it  is  laid  down  in  the 
books  as  a  general  rale,  that  the  best  evidence  the  nature  of  the  case  will 
admit  of,  must  be  given;  yet  it  is  not  understood  that  this  rule  requires  the 
strongest  possible  assurance  of  the  matter  in  question.  The  extent  to  which 
the  rule  is  to  be  pushed  is  governed,  in  some  measure,  by  circumstances. 
By  Thompson,  J.,  7  Pet.  99. 

It  is  an  indispensable  rule  of  law,  that  evidence  of  an  inferior  nature, 
which  supposes  evidence  of  a  higher  nature  in  existence,  and  which  may  be 
had,  shall  not  be  admitted.  Commonwealth  v.  Kinison,  4  Mass.  640.  Here, 
P.  was  called  to  to  identify  a  counterfeit  bank  note,  which  defendant  was 
charged  with  having  in  his  possession,  and  having  passed  to  him  ;  but  when 
he  testified  that  the  bank  note  he  had  received  had  been  out  of  his  posses- 
sion, and  in  the  possession  of  the  justice,  whose  testimony  might  have  been 
had,  the  court  iield,  that  it  was  irregular  to  admit  him  to  testify  to  the  iden- 
tity of  the  note  produced,  from  his  recollection  of  accidental  marks.  The 
testimony  of  the  justice  would  have  been  direct,  and  is  of  a  superior  nature. 
Parsons,  C.  J.,  observes: — "If  the  witness  present  had,  before  he  j)arted 
with  the  note,  made  any  private  artificial  mark,  which  he  recognized  on  pro- 
ducing the  note,  and  to  which  he  could  positively  swear,  we  think  such  tes- 
timony ought  to  have  been  admitted,  as  being  of  as  high  and  satisfactory  a 
nature  as  tlie  justice's  testimony;  because  it  could  not  be  presumed  that  a 
fac  simile  of  his  private  artificial  mark  would  be  imposed  on  another  note  by 
another  person.  But  any  accidental  marks  on  this  note  might  have  hap- 
pened to  be  on  other  notes." 


Ch.   19,]  Secondary  Evidence,  S9T 

attainable  evidence,  leaving  it  to  the  operation  of  the  rule 
which  excludes  hearsay,  and  to  other  rules,  to  narrow  still  fur^ 
ther  the  admissibility^  of  the  proofs.  In  requiring  the  produc- 
tion of  the  best  evidence  applicable  to  each  particular  fact,  it 
is  meant  that  no  evidence  shall  be  received  which  is   merely  siubstiiuicii 

...  •      •   ,  1  1  •    •       1         .  1  evidence. 

substitutionary  in  it  s  nature,  so  long  as  the  original  evidence 
is  producible.  To  give  an  operation  to  the  rule,  the  evidence 
tendered  must  itself  indicate  the  existence  of  more  original 
sources  of  iniormation. 

Where  there  is  no  substitution  of  evidence,  but  only  a  se-- 
lection  of  weaker  for  stronger  proofs,or  an  omission  to  supply  all 
the  proofs  capable  of  being  produced,  the  rule  is  not  infring- 
ed. If  a  deed  or  will,  for  example,  is  attested  by  several  sub- 
scribing witnesses,  the  execution  may  be  proved  by  one  of 
them.  (2)  For  the  purpose  of  proving  hand-writing,  it  is 
not  necessary  to  call  the  supposed  writer  himself.  (3)  Where 
a  notice  to  *produee  a  letter,  written  by  aplaintilf  to  a  defend-  r  *439  1 
ant,  had  been  given,  it  was  held  that  it's  contents  might  be 
proved  by  any  person  acquainted  with  them,  although  it  was 
ill  the  plaintiffs  power  to  produce  the  clerk  who  wrote  the 
letter.  (1) 

In  prosecutions,  where  it  is  necessary  to  prove,  that  the  act, 
with  which  the  prisoner  is  charged,  was  done  without  the 
consent  or  against  the  will  of  some  other  person,  (as,  upon  in- 
dictments for  unlawfully  killing  deer,  or  taking  fish,)  it  is 
not,  in  general,  indispensably  necessary  to  call  that  person  as 
a  witness  on  the  part  of  the  prosecution,  in  order  to  prove  the 
negative,  that  he  did  not  give  his  consent.  (2) 

Some  misapprehension  as  to  the  nature  and  extent   of   the  T''^^'«'n» 
rule  has  been  occasioned  by  the  case  of  Williams  v.  TJie  East  co.\a) 

(2)  B.  N.   P.  264.  Even  the  examina-  an  early  case    it  was   lliought   necessary 

tion  of  a   deceased    subscribing  witness  to    disprove      handwriting     by      calling 

may  supersede  the  necessity   of  calling  a  the  parly  whose  receipt  had  been    alter- 

survivor.     Wright  w.  Tatham,    1    A.    .^  ed.      Smith's  case,  2  East's  I*.  <'.  1000. 

E.  3.     Heeinfra,   as   to    proof  of  mar-  (1)  Licliman  «.  Pooley,    1    St.    1()7. 

riage    without    the   register,    and    as   to  On  an  indiclment  for  perjury,    it    is   not 

proof  of   examinations    before      magis-  necessary  to    cill  the    clerk    who    wrote 

trates,  by  oilier  persons  than  the    niagis-  the  .Jurat.     Rex    v.    Benson,    2    Camp, 

trale  or  his  clerk.  50S.     See  2  IJurr.  1189. 

(3)  On  a   Hank  prosecution,   it   was  (2)  Allen's  case,  1  Mo.  Cr.  Ca.  15t. 

not  thought  necessary   to  disprove   tlie  Ilary's  case,  2  C.  iV   P.    lijS.     At  one 

cashier's    handwriting,    by    calling    the  time  it  appears  ;o    have    been    ihougiit 

cashier.     Hughes's  case,  2  East's  P.  C.  necessary  to  call  the  owner  as  a  witness. 

1002.     M.  (iuire's   case,    ib.,    case   of  lloger's  case,  2  Camp.  G51. 
Bank  prosecutions,  11.  &   R.    378.     In 

(a)  Williams  v.  E.  I.  Co.  decides,  that  the  testimony  of  witnossos  from 
whicli  a  stroiif^  and  satisfactory  presumption  arises,  is  not  adinissiblf,  if  it 
appears  that  there  is  a  witness  who  mipht  be  produced,  and  who  C(Mi]d  tes- 
tily directly  to  tlie  fact.  Yet,  upon  tlio  trial  of  an  indictment  for  passin^r 
counterfeit  money  upon  a  banii-  out  of  the  state,  witnesses  within  the  state 
are  admitted,  allhougli  they  have  never  seen   the  president  and  cashier 


398  Secondary  Evidence.  [Ch.  19. 

Iiidia  Company,  (3)  where  the  question  was,  Whether  the 
defendants  liad  put  on  board  the  plaintiffs  ship  some  articles 
of  a  corabastible  and  dangerous  kind,  without  giving  due  no- 
tice of  their  nature  to  the  master  of  the  ship,  or  to  any  other 
person  employed  in  it's  navigation.  It  appeared  in  evidence 
at  the  trial,  that  the  goods  were  delivered  by  the  officer  of  the 
defendants,  with  a  written  order  to  the  plaintiff  to  receive 
them,  in  which  order  nothing  was  said  as  to  their  nature  ; 
that  they  were  received  by  the  chief  mate  of  the  plaintiffs 
ship,  who  had  since  died  ;  and  that  no  other  person  was  pres- 
ent at  the  time  of  the  delivery.  It  was  further  proved,  by 
the  captain  of  the  ship  and  the  second  mate,  that  no  cotnmu- 
nication  had  been  made  to  either  of  them,  nor,  as  far  as  they 
knew,  to  any  other  person  on  board.  Upon  this  evidence,  the 
plaintiff,  who  had  to  prove  the  negative,  was  nonsuited,  on 
the  ground,  that  he  had  not  given  the  best  evidence  of  the 
r  *440  1  want  of  notice  which  it  was  in  *his  power  to  produce,  by 
calling  the  company's  officer,  who  delivered  the  articles  on 
board.  And  the  nonsuit  was  afterwards  affirmed  by  the  Court 
Best  proof  of  King's  Bench.  "  The  best  evidence,"  said  Lord  Ellenbor- 
of  negative.  Q^jgi^^  [^  delivering  the  opinion  of  the  Court,  "  should  have 
been  given,  of  which  the  nature  of  the  case  was  capable. 
The  best  evidence  was  to  have  been  had,  by  calling,  in  the 
first  instance,  upon  the  persons  immediately  and  officially  em- 
ployed in  the  delivering  and  in  the  receiving  of  the  goods  on 
board,  who  appear  in  this  case  to  have  been  the  first  mate,  on 
the  one  side,  and  the  military  conductor,  the  defendant's  offi- 
cer, on  the  other ;  and  though  the  one  of  these  persons,  the 
mate,  was  dead,  that  did  not  warrant  the  plaintiff  in  resorting 
to  an  inferior  and  secondary  species  of  testimony,  (namely,  the 
presumption  and  inference  arising  from  a  non-communication 
to  the  other  persons  on  board,)  as  long  as  the  military  conduc- 
tor, the  other  living  witness,  immediately  and  primarily  con- 
cerned in  the  transaction  of  shipping  the  goods  on  board, 
could  be  resorted  to  ;  and  no  impossibility  of  resorting  to  this 
evidence,  the  proper  and  primary  evidence  on  the  subject,  is 
suggested  to  exist  in  this  case."  It  is  to  be  observed,  that  the 
evidence  in  this  case  which  was  received,  was  not  secondary 
in  it's  nature,  inasmuch  as  it  would  have  been  admissible, 
notwithstanding  what  was  said  to  have  been  the  primary  ev- 
idence had  been  produced,  and  it  is  difficult  to  consider  upon 

(3)  3  East,  193,  201. 


write.  2  Greenl.  33 ;  2  Pick.  47.  The  rule  as  to  better  evidence  does  not 
apply ;  and  persons  are  competent  to  testify  to  the  genuineness  of  the  notes 
whose  knowledge  is  acquired  in  any  other  way,  such  as  having  seen  gen- 
uine bills  of  the  same  bank  and  have  skill  to  detect  counterfeit  money.  2 
N.  H.  R.  480. 


Ch.  19.]  Secondary  Evideiice.  399 

what  principle  it  could  have  been  substituted  for  such  prima- 
ry evidence,  in  case  of  it's  faihu-e  in  consequence  of  the  death 
of  witnesses.  The  case,  therefore,  appears  to  be  one  in  which 
there  was  a  failure  of  the  proper  measure  of  proof,  and  not  a 
substitution  of  secondary  for  primary  evidence.  (1) 

That  the  rule  in  question  relates  only  to  the  quality,  and  ^"""'''.v  of 

i  ^      ii  •  1        /.     ,  -1  .       ^       ,  .,     evidence. 

not  to  the  quantity  or  strength  of  the  evidence,  is  further  il- 
lustrated by  the  cases,  in  which  it  has  been  held,  that  the  en- 
tries or  hearsay  statements  of  deceased  persons  are  receivable 
in  evidence  *notwithstanding  the  same  facts  might  be  proved  [  *441  ] 
by  living  witnesses.  Thoug-li  all  information  must  be  traced 
to  it's  source,  if  possible,  yet  if  there  are  several  distinct  sourc- 
es of  information  as  to  the  same  fact,  it  is  not,  in  general,  nec- 
essary to  shew  that  they  have  all  been  exhausted,  before  sec- 
ondary evidence  can  be  resorted  to.  Thus  an  entry  made  by 
a  deceased  collector  is  proof  of  the  fact  of  the  money  having 
been  paid,  without  calling  the  persons  who  paid  it  to  him.  (Ij 

One  of  the  most  ordinary  occasions,  to  which  the  present  ^Jn^'^^„'f' 
rule  is  applicable,  relates  to  the  substitution  of  oral  for  written  wriiing. 
evidence.  The  qualifications,  under  which  oral  evidence 
may  sometimes  be  received,  notwithstanding  the  existence  of 
written  evidence,  will  be  more  particularly  considered  in  the 
second  part  of  this  work  ;  in  the  present  place,  it  is  only  ma- 
terial to  inquire,  in  what  cases  it  is  not  allowable  to  substitute 
entirely  the  one  for  the  other. 

First,  then,  oral  evidence  cannot  be  substituted  for  any  in-  Wriiin-r 
strument  in  writing,  the  existence  of  which  is  disputed  and  is  oidispuic. 
material  to  the  issue  between  parties,  or  to  the  credit  of  the 
witnesses,  and  which  is  not  merely  the  memorandum  of  some 
other  fact.  One  advantage,  derived  from  the  aj)plication  of 
the  rule  to  such  cases,  is,  that  the  Court  acquires  a  knowledge 
of  the  whole  contents  of  the  instrument,  which  may  have  an 
effect  very  difl'erent  from  a  statement  of  a  part.  "  I  have  al- 
ways," says  Lord  Tenterden,  "  acted  most  strictly  on  the 
rule,  that  what  is  in  writing  shall  only  be  proved  by  the  writ- 
ing itself;  my  experience  has  taught  me  the  extreme  danger 
of  relying  on  the  recollection  of  witnesses,  however  honest,  as 
to  the  contents  of  written  instruments  ;  they  may  be  so  easily 
mistaken,  that  I  think  the  purposesof  justice  require  the  strict 
enforcement  of  the  rule."  (2) 

(1)  On    the   subject   of  what  is   the  (1)  Middleton  r.  Melton, 10  B.&C  32S. 

proper     measure     of    proof     in      cases  Per  ParUe  J.,  ih.  referring   to    IJarry    v, 

similar  to  that  in  the  text,  see  Coster    c.  BeUhington.     The  rule  as    to    the    proof 

Reed,  6  15.  Sf  C.  21.     The    strenath    of  of  in.struinents  by  subscribing  witnij.ssos, 

proof  reijuired  will  depend  materially  on  some  or  whom  are    dead,    is  otherwise, 

the    facility   afforded   the  opposite  party  in  consequence  of  the  iiilcrveniion  of  iiri- 

for    explanation    or   contradiction.     Per  other  principle.     See  Wright  u.  Tatliam, 

Lord  Tenterden,  in  Rex  v.   Burdelt,    4  1  A.  ^  K.  -i,  and  infra,  p.  2. 
B.  ^  A.  162.  (2)  Vincent  v.  Cole,   M.  .y   M.  25S, 


400 


Scconclaiij  Evidence. 


[Chap.   19. 


Allot, 
incuts. 


Y*A%}  1  *^^  ^^''^^  decided  in  the  Queen's  case,  (i)  (a)  that  it  is  not 
I  ^'^  i  viewable,  on  cross-examination,  in  the  statement  of  a  ques- 
tion to  a  MHtness,  to  represent  the  contents  of  a  letter,  and  to 
ask  the  witness,  whether  lie  Wrote  a  letter  to  any  person  with 
such  contents,  or  to  the  like"  effect ;  because  the  counsel  might 
thus  put  the  Court  iu  possession  of  a  part  only  of  the  contents 
of  a  written  paper.  And  even  if  the  witness  acknowledges 
the  letter  to  be  in  his  hand-writing,  he  cannot  be  cpiestioned 
as  to  it's  contents,  but  the  whole  letter  must  be  read  in  evi- 
dence. So,  where  the  inquiry  was  as  to  the  existence  of  allot- 
ments, made  by  inclosure  commissioners  in  another  mode, 
than  in  and  by  the  execution  of  their  award,  it  was  consider- 
ed that,  if  such  allotnicnts  were  made,  they  must  be  in  writ- 
ing, and  therefore  the  minutes  of  the  commissioners  were  the 
primary  evidence  of  them,  and  no  other  evidence'  of  such  allot- 
ments could  be  givefn,  until  a  search  had  been  made  after  the 
minutes.  (2) 

Oral  evidence  cannot  be  substituted  for  any  written  convey- 
ance or  contract.  (3)  The  written  instrument  in  such  cases 
tnay  in  some  measure  be  regarded  as  the  ultimate  fact  to  be 
proved,  especially  where  the  question  relates  to  the  proof  of 
deeds  and  negotiable  securities ;  and  the  principal  object  of 
committing  contracts  of  every  kind  to  writing  is  the  intention 
of  the  parties  to  preserve  a  memorial  of  them,  more  lasting  and 
more  authentic  than  oral  testimony.  Accordingly,  a  plain- 
tiff is  not  permitted  to  recover  in  an  action  for  use  and  occu- 
pation, or  ejectment,  where  there  is  a  written  contract  of  ten-- 
ancy,  without  producing  it.  (4)  [h)  If  it  comes  out  upon 
[  *443  ]  cross-examination  of  the  plaintiff's  *\vitnesses,  that  there  is  a 
written  agreement,  he  must  produce  it  ;  but  if  he  makes  out 
Vi  prima  facie  case,  without  sliewing  that  there  was  any  writ- 


Contracts. 


Terms  of 
tenancy , 


Queen's  case,  per  Lord  Tenterden,  2  B. 
I'i;  B.  2S7,  and  see  the  observations  of 
Best,  Ch.  J.,  in  Strother  v-  Carr,  5Bing. 
151. 

(1)  2  Br.  &  B.  286.  Crowley  v. 
Piige,  7  C.  &  P.  790.  Vide  infra,  ex- 
aininntion  of  witnesses. 

(2)  Bendyshe  v.  Pearse,  1  Br.  Sr  B. 
464.  As  to  the  point,  whetlier  a  dying 
declaration,  signed  by  the  deceased,  ex- 
cludes oral  testimony.  Vide  supra 
Dying  Declarations. 

(3)  B.  N.  P.  546,  as  to  Wills.  Vide 
infra,  part  2,  as  to  the  admissibility  of 
parol  evidence,  of  what  is   termed  sup- 


pletory  matter,  not    varying  thn    written 
terms.     JetTery  v.  Walton,  I  St.  269. 

(4)  Brewery.  Palmer,  .3  I'sp.  21.3. 
Fenn  d.  Thomas  r.  Griliiih,  6  llin". 
533.  Rex  v.  Inhabitants  of  Castle 
Morton,  3  B.  ,^  A.  5SS,  where  the  con- 
tract was  lost,  but  was  not  stamped.  Rex 
r.  Inhabitants  of  Ravvden, 8  B.  &  C.708, 
Dover  V.  Mestaer,  5  Esp.  92.  It  is  not 
sulficient  to  nonsuit  the  plaintirt',  by  the 
evidence  of  his  witness,  that  there  is  an 
agreement,  in  vvriiing,  relative  to  the 
land.  Doe  d.  Wood  v.  Morris,  12  East, 
237.  Sherwood  v.  Pearson.  12  East, 
239.     Per  Park,  .!.,  5  Bing.  150. 


(«)  See  Ware  v.  Ware,  8  Greenl.  5-3,  and  Tucker  v.  Welsh,  17  Mass.  160. 

(6)  Ejcdment.  See  6  Greenl.  9 ;  4  Pick.  1(30 :  C  N.  li.  R.  107;  5  Coweii, 
219 ;  G  id.  316 ;  8  id.  543  and  12  Wend.  556  as  to  what  plaintiff  must  prove 
in  ejectment. 


Ch.   19.]  Secondary  Evidence.  401 

ten  contract,the  other  party, if  he  relies  on  that  written  contract, 
must  produce  it ;  (1)  otherwise  the  plaintiff  might,  on  a  mere 
assertion  of  the  defendant,  be  non-suited  for  the  non-produc- 
tion of  a  written  instrument,  which,  if  it  had  been  produced, 
might  turn  out  not  to  apply  to  the  contract  in  question. 

Wh-ere  the  single  fact  of  the  occupation  of  land  is  in  issue,  Fact  of 
such  fact  may  be  proved  by  payment  of  rent,  declarations  of  **"*"'^^'- 
the  tenant,  or  other  parol  evidence  sufficient  to  establish  it, 
notwithstanding  it  appears  that  the  holding  is  under  an  agree- 
ment in  Avriting  ;  (2)  but  where  the  question  is  not  merely  as 
to  the  occupation  of  land,  but  as  to  the  person«under  whom  it 
is  held,  if  there  be  a  written  agreement  shewing  that  fact,  it 
nnist  be  produced.  (3) 

The  same  doctrine  applies  to  every  species  of  written  con-  Work  an-i 
tracts,  as  well  as  to  contracts  between  landlord  and  tenant.  (4)   *  °'^' 

(1)  Rex  V.  Padstow,  4  B.  S,-  Ad.  210.  (3)  Doe  v.   Harvey,  8  Bing.  241 

Feno  d.    Thomas    v.    Griffith,    6    Bing.  In  Strothcr  v.    Barr,  5    Bing.    136,    the 

533.     Fielder    v.    Ray,    6    Bing.    332,  Court  of  Coiiiinon    Pleas    were   divided 

where  plaintiff  proved  a  contract  by  pa-  upon  the  question,  whether,  in  an   action 

rol,  and  it  was  held  that  he  could  not  be  for    injury  to  the  reveision,  it  is    conipe- 

nonsuited    by   the    defendant    producing  tent  to  prove  the  occupier's    holding    by 

an  unstamped  written    agreement.      Per  parol,  when  he    holds    under    a    written 

Littledale,  Reed  v.  Deene,  7    B.    &    C.  agreement.     See  Colterill  v.    Hotby,    4 

266.      Stephens    v.    Pinney,   8    Taunt.  B.  :«c  C.  465. 

327,  where  the  defendant  had  neglected  (4)   Polices  of  insurance.  Rex  w.  Gil- 

to  give  the   piaintitF  notice    to    produce,  son,  R.  &  R.   138.     Rex    v.    Dovan,    1 

Per  Bayley  J.,  Rex  v  Rawden,  8  B.    &  Esp.  127.     The  policies  were  held  to  be 

C  708.  better  evidence    than  the    i)ooks    of  the 

(2)  Rex  V.  Holy  Trinity,  Hull  7  B.  &  insurance  oltice.  Resolution  of  Coni- 
C.  hll.  Slrother  v.  Barr,  5  Bing.  138,  mittee,  in  an  action  iiy  Secretary  Whit- 
comiiientedon  in  Doe  v.  Harvey,  8  Bing.  ford  v.  Toting,  I'J  Bing.  395. 

241. 


[a]  Plaintiff  eng'ag^ed  to  write  a  treatise  for  a  periodical  pttblication,  and 
commenced  it ;  but  before  he  had  completed  it,  the  defendants  abandoned 
the  publication.  He}d,  that  plaintiff  mi;ji7t  sue  for  compensation,  without 
tenderiho:  or  deliverinir  tlie  treatise.  It  was  part  of  the  contract  that  it  was 
to  be  published  in  a  particular  manner;  and  if  it  liad  been  delivered  after 
the  abandonment,  it  might  have  been  published  in  a  way  not  consistent  with 
the  plaintiff's  reputation,  or  not  at  all.     Plancke  ?•.  Colburn,  8  Hin^'.  14. 

If  he  who  is  to  be  benefitted  by  another's  pertorminir  his  ao-reement,  is 
the  occasion  why  it  is  not  carried  into  execution,  the  party  bound  to  tlie  per- 
formance will  be  in  the  same  condition  as  if  the  anfreement  had  been  liter- 
allv  fulfilled.  By  Hosiuer,  2  Conn.  4!)4  ;  5  id.  405;  9  id.  ;'j(;4.  And  where 
{roods  were  to  be  paid  for  in  labor,  held,  that  an  offer  to  perform,  but  was 
prevented  by  the  plaintiff,  was  sulRciont  under  the  general  issue.  13  J.  R. 
56. 

One  fjeneral  rule  in  relation  to  special  agreements  for  the  perforinance  of 
labor,  deliverv  of  materials,  or  the  like,  is,  that  so  \<m^s,  as  the  contract  con- 
tinues crcrMiory,  the  plaintiff  must  declare  specially;  but  when  it  has  been 
executed,  he  may  declare  cronerally — nsin<r  only  the  appropriate  common 
counts.  This  he  may  do  althoua-h  the  contract  was  in  writinj^'.  15y  Hronson 
J.,  in  Mead  r.  Degolyer,  10  Wend.  G39.  In  that  case,  the  plaintiff  n<,n-eed 
in  writin:f  to  deliver  a  lar'^'-e  rpiantity  of  timber;  for  which  he  was  to  bo 
paid,  except  the  part  which  he  had  already  received,  wlieii  the  whole  rpian- 
tity  bhould  be  delivered.     Held,  that  the  plaintifi'  could  n..t  recover  under  a 


402  Secondary  Evidence.  [Ch.   19. 

In  an  action  for  work  and  labor,  when  it  is  shewn  that  tlie 
work  was  commenced  under  a  written  agreement,  the  agree- 
ment ought  to  be    produced,  and  the  plaintilf  cannot   recover 

Extras,  (h)  without  it  for  extras  ;  for  the  written  contract  might  be  of  im- 
portance even  with   respect  to  the    extra  work,  as  furnishing 

[  *444  ]  some  evidence*  between  the  parties  as  to  the  rate,  at  which 
the  work  should  be  paid  for.  With  respect  to  the  Judge,  in 
such  a  case,  looking  at  an  unstamped  agreement,  in  order  to 
see,  whether  it  referred  to  the  items,  claimed  to  be  received 
independently  of  it :  Lord  Tenterden  observed,  that  such  a 
practice  would  be  attended  with  too  much  inconvenience.  (1) 

(1)  Vincent  J).  Cole  M.    f,-  M,    258.     Rex  u.  Pendleton,  15  East,   449. 


quantum  meruit  for  a  part  of  the  timber;  the  delivery  of  the  timber  was  a 
condition  precedent  to  the  payment  of  the  price,   id.   M'Millan  i\  Vanderep, 

12  J.  R.  I(i5.  Jenning's  r.  Camp,  13  id.  94  ;  Ketcham  v.  Evertson,  id.  ^59. 
Wood  V.  Edwards,  19  Id  20rj.  Champlim  v.  Rowley,  13  Wend.  258.  Sickles 
I'.  Pattison,  14  id.  2.57. 

When  the  case  is  such  that  the  plaintiff  might  recover  on  the  general 
count,  it  will  be  no  objection  that  the  declaration  also  contains  a  count  on  a 
special  agreement;  and  if  the  plaintiff  attempt  to  prove  the  special  agree- 
ment, and  fail  to  do  so,  it  will  not  prejudice  his  right  to  recover  under  the 
general  counts.  Payne  v.  Bacomb,  Dougl.(j.jl .  Tuttle  v.  Mayo,  7.T.  R.  132; 
Robertson  v.  Lynch,  18  id.  351.  In  all  these  cases  the  plaintiff  iiad  ptr- 
formed  on  his  part. 

A  part  performance  of  a  special  contract,  which  is  then  abandoned  by  the 
mutual  consent  of  the  parties,  or  is  rescinded  by  some  wrong  act  on  the  part 
of  the  defendant,  will  entitle  the  plaintiff  to  resort  to  the  appropriate  com- 
mon counts,  to  recover  for  his  labor,  materials,  goods  furnished,  or  money 
paid  under  the  special  agreement.  Mead  i'.  Degolyer,  16  Wend.  032.  See 
15  J.  R.  224. 

But  where  the  special  contract  is  still  subsisting,  and  no  act  has  been 
done  by  one  party  which  will  authorize  the  other  to  consider  it  rescinded, 
the  plaintiff  cannnot  resort  to  the  common  counts,  id.  14  J.  R.  32G;  19  J.  R. 
337 ;  2  Pick.  2(J7,  332.     See  also  2  Mass.  147,  and  20  J.  R.  28. 

A  third  class  of  cases  where  plaintifi'  may  resort  to  the  common  counts, 
is,  where  plaintiff  has  made  a  special  contract,  and  the  work  though  actuallij 
performed,  has  not  been  done  within  the  stipulated  time,  or  there  has  been 
some  departure  from  the  terms  of  the  original  contract.  Here,  although 
plaintiff  cannot  recover  on  the  contract,  he  may  recover  the  value  of  the 
work  and  materials  on  a  quantum  meruit.     See  Mead  v.  Degolyer,  supra; — 

13  J.  R.  34  ;  4  Cowen,  2G4.  If  the  contract  has  not  been  executed  in  the 
manner  stipulated  for,  so  that  he  cannot  recover  the  price  agreed  upon  by 
an  action  on  the  contract,  the  party  may  nevertheless,  recover  on  a  quantum 
meruit  for  the  work  and  labor,  and  a  quantum  valebant,  for  the  materials ; 
but  so  as  in  all  events,  defendant  shall  lose  nothing  by  the  breach  of  con- 
tract. Hayuard  v.  Leonard,  7  Pick.  181.  See  also  8  id.  178;  4  Cowen, 
5G4  ;  2  Fairf  34G;  4  Wend.  285.  If  the  work  is  not  done  according  to  the 
specification  in  the  contract,  what  he  is  entitled  to  is  the  price  agreed  upon, 
subject  to  the  deduction  of  the  sum  which  it  would  take  to  make  it  agree 
with  the  specification.  Thornton  v.  Place,  1  Mo.  and  Rob.  218.  Where  the 
contract  is  not  completed  or  abandoned,  the  plaintiff  can  only  recover  the 
worth  of  his  labor,  or  the  amount  of  advantage  or  benefit  to  defendant.  G 
N.  PL  R.  1.5—481.     See  4  Wend.  285;  7  id.  121 ;  5  B.  &  C.  378  ;  9  id.  92. 

(//)  See  ante  p.  .388,  note ;  and  12  Wend.  1334  ;  13  id;  27G;  4  id.  289. 


Ch.   19. J  Secondary  Evidence.  403 

Where,  however,  a  written  communication  or  agreement  Collateral 
between  parties  is  collateral  to  the  question  in  issue,  it  need  ''^"""^' 
not  be  produced  ;  as,  where  the  writing  is  a  mere  proposal, 
which  has  not  been  acted  upon,  (2)  or  where,  during  an  em- 
ployment under  a  written  contract,  a  separate  order  is  given 
by  parol,  (3)  or  where  the  action  is  not  in  the  form  of  assump- 
sit upon  the  agreement,  but  in  tort  for  the  conversion  of 
it.  (4) 

The  questions,  usually  occurring  in  practice,  relate  to  the  W.-iiten 
reception  of  oral  testimony ;  but  the  principle  of  the  rule  evideico.'* 
equally  applies  to  the  substitution  of  testimony  which  is  writ- 
ten. Thus,  on  the  trial  of  a  person  charged  with  having  wil- 
fully, with  intent  to  injure  an  insurance  company,  set  fire  to 
a  house,  which  he  had  insured  at  the  company's  office,  it  was 
held  not  allowable  to  prove  the  insurance  by  the  books  of  the 
company,  without  giving  the  prisoner  a  regular  notice  to  pro- 
duce the  policy.  (5) 

*So,  if  it  should  be  material  for  a  plaintiif,  in  reply  to  the  [  *445  ] 
case  of  the  defendant,  to  prove  the  contents  of  a  registered 
deed,  which  is  m  the  defendant's  possession,  the  memorial 
of  the  deed  would  not  be  admissible  for  that  purpose,  unless 
there  had  been  previously  a  notice  given  to  the  defendant  to 
produce  the  original  ;  (1)  and  numerous  other  examples  occur 
to  the  like  eifect.  The  rule  has  reference  to  the  substitution 
of  evidence,  whether  it  be  of  the  same  or  of  inferior  de- 
gree. (2)  («) 

Where  the  law  requires  an  entry  to  be  made  in  a  Court  of  Matter  of 

record. 

(2)  Doe  d.  Bingham  r.  Cartwright,  for  monies  received.  Bayne  r.  Stone, 
8  B.  ^  A.  326.  Daiisen  ?•.  StarU,  4  4  Ksp.  13,  See  Ingram  u.  Lea,  2  Camp. 
Esp.  163.  Stephens  v.  Finney,  S  Taunt.  521.  In  trover  for  a  written  document, 
328.  Hawkins  v.  Warr,  3  \\.  C.  698.  tlie  plaintill"  may  prove  the  description 
A\'iIson  V.  Bowie,  1  C.  fy  P.  8.  Rams-  of  tlie  document  by  secondary  evidence, 
bottom  V.  Tunbridge,  2  M  Sf  S.  434,  though  tiie  defendant  offers  to  produce  it. 
signed  paper  delivered  by  auctioneer.  Vv'hiiehead  v.  Scott,  1  IM.  4"  'fo-  2. 
Edgar  v.  Blake,  1  St.  464,  a  prospectus.  (5)  Rex  v.  Doran,  1  Esp.  127.  Rex 
Ingram  v.  Lea,  2  Camp.  521,    order  for  v.  Gibson  R.  fy  R.  138. 

goods.  (1)  Molten,  q.    t.   v.    Harris,  2    Esp. 

(3)  Reed  v.  Battie,  M.  Sf  M.  413.  548,  and  see  Underbill  v.  VVutts,  3  Esp. 

(4)  See  Bucher  v.  Jarret,  3    B.  4-  P.     56. 

143.     Jolly  u.  Taylor,    1    Camp.    143.  (2)  It  would  seem  that  tiicre  were  no 

Davis  i'.  Reynolds,    1  St.  113.      How  tJ.  degrees  of  secondary   evidence.    Brown 

Hall,  14  East,  274.     Doe  d.    Wood   v.  v.  Woodman,  6  C.  c^   P.    206;  but   seo 

IMorris,    12  East,    237.     Sbearwood    v.  Rex   v.    Castleton,    6    T.     R.    236.  B. 

Pearson,  i7».     I'er  Park,  .1.,  5  Bing.  loO.  N.   P.  254.   Liebman  w.    Pooley,    1    St. 

Dover  ?>.  Maslaer,  5  Esp.  92.    So  where  167,  that  a    copy  oi  a  copy    is   not    the 

the  foundation  of  the  action  is  a  written  best  secondary  evidence, 
security,  but  the   immediate  demand    is 

(a)  Sec  the  case  of  Smith  v.  Wells,  0  J.  R.  28fi,  where  it.  was  Iicld,  tliat 
the  service  of  a  copy  of  any  plcadin^r  upon  the  oDpositc  party,  was  conclu- 
sive evidence  as  to  jiiin  that  tlic  orijrinal  had  boon  filed  aij-fccablc  to  the  rule- 
which  required  tiie  original  to  be  filed  with  the  clerk  before  the  copy  should, 
be  served. 


404 


^ecojidary  Evidence. 


[PA\.  19. 


Justice  of  particular  transactions,  the  oflicial  entry  excludes  all 
independent  evidence  of  the  transaction.  Thus,  parol  evi- 
dence was  held  not  admissible  to  prove  the  taking  of  oaths 
required  by  the  Toleration  Act,  as  the  fact  would  be  recorded 
in  the  Court  where  the  oaths  were  taken.  (3)  (a)  In  like  man- 
ner, parol  evidence  is  not  admissible  of  the  day  on  which  a 
cause  came  on  to  be  tried,  as  it  is  capable  of  proof  by  matter 
of  record,  (l)  Upon  a  (juestion  whether  the  Abbey  de  Senti- 
bus  was  an  inferior  abbey,  or  not,  Dugdale's  Monasticon  was 
refused,  because  the  original  record  was  to  be  found  in  the 
Augmentation  Office.  (5)  And  it  has  been  seen  that  even  an 
admission  of  a  party  does  not  supersede  direct  proof  of  matter 
of  record,  by  which  it  is  sought  to  affect  him.  (6) 

Where  an  official  memorandum,  not  strictly  of  record,  is  re- 
quired by  law  to  be  made,  of  the  particulars  of  any  statement, 
all  evidence,  in  substitution  of  such  memorandum,  is,  in  gen- 
eral to  be  excluded.  (7)  Thus,  no  parol  evidence  can  be  *giv- 
en  of  a  prisoner's  confession  before  a  magistrate,  whilst  he  is 
I  446  J  under  a  charge  of  felony  or  misdemeanour,  unless  it  be  first 
proved,  that  the  confession  was  not  taken  down  in  writing, 
pursuant  to  the  provisions  of  the  statute  7  Geo.  4,  c.  64.  (1)  It 
will  be  presumed,  until  the  contrary  is  shewn,  that  the  pris- 
oner's examination  has  been  taken  down  in  writing,  in  con- 
formity with  the  Statute.  (2)  It  has  been  thought,  in  some 
cases,  that  after  the  production  of  the  prisoner's  examination 
in  writing,  it  is  competent  to  prove  by  parol  any  thing  which 
the  prisoner  may  have  said  before  the  magistrate,  in  addition 
to  what  appears  in  the  written  examination,  on  the  ground, 
apparently,  that  such  evidence  is  not  in  substitution  of  any 
thing  which  is  in  writing.  (3)    But  as  such  parol  statements 


Official 

inenioran- 

dum. 

Prisoner's 
ex  a  ill  in  a- 
lion. 


(3)  Rex  V.  Ilube,  Peake,  131.  The 
same  doctrine  applies  to  the  proceedings 
of  Courts  which  are  not  of  Record,  and 
apparently  to  the  proceedings  of  inferior 
Courts,  of  which  written  memorials  are 
preserved,  vide  infra,  part  2, 

(4)  Thomas  v.  Ashley,  6  E,>p.  80. 
Rex  r.  Page,  iTj.  S3;  and  see  Phillips's 
case,  R.  &  R.  369. 

(5)  Saik.  281. 

(6)  Vide  Supra,  Scott  v.  Clare,  3 
Camp.  236. 

(7)  The  rule  in  the  cases  about  to  be 
noticed  seems  more  rigid  than  in  regard 
to  tlie  proceedings  of  Courts  before  men- 
tioned, which  are  allowed  to  be  proved 
by  eiamined  copies. 


(1)  Rex  V.    Hall    cited    in    Rex    v. 

T^anibe,    Leach,  635.     1  Hale,   284 

Rex  V.  Lewis,  6  C.  4-  P.  161.  The 
rule  does  not  apply  to  examinations  be- 
fore tiiagistrates  on  summary  convictions, 
which  are  not  required  to  be  taken  down 
in  writing.  Rex  v.  Edmunds,  6  C.  &  P. 
164. 

(2)  Rex  V.  Jacobs,  Leach,  349.  Rex 
i>.  Hickman,  ib.  Rex  v.  Fisher,  j'6.Rex 
V.  Hall,  ib.  Rex  v.  learshere,  ib.  15. 
N.  P.  298.  Hawk.  c.  46,  s.  43.  Phil- 
lips V.  Wimburn,  4  C.  8r  V.   27.3. 

(3)  Rex  V.  Harris,  Mo.  Cr.  Ca.  338. 
See  Rowland  v.  .^shby,  R.  <^  M.  231. 
In  Hex  V.  Spilsbury,  7  C.  &  P.  188,  pa- 
rol evidence  was  given  of  what  the  pris- 


(a)  See  Adams  v.  Betz,  1  Watts,  448.  But  in  an  action  on  a  policy  of 
insurance,  the  plaintiff'  may  show  the  seizure  of  the  ship  by  an  armed  sol- 
diery in  a  foreinfn  port,  Avithout  producing  the  record  of  condemnation,  al- 
though he  has  the  record  in  his  possession.    8  Pick.  232. 


Ch.  19.] 


Secondary  Evidence. 


405 


may  imterially  affect  the  written  examination,  and  as  they 
are  hable  to  considerable  suspicion,  from  the  circumstance  of 
their  not  having  been  taken  down  by  the  magistrate,  they 
ought  to  be  received  with  the  greatest  caution.  (4)  A  written 
examination  will  not  exclude  a  parol  confession,  m^ade  previ- 
ously to  the  prosecutor  or  other  person  than  the  magistrate.  (5) 

Where  the  confession  of  a  prisoner  before  a  magistrate  has  '"'""'■"lai 

1  ill  ■  •    •  1  1  •  ^    .  .  .      Pxainiiia- 

been  taken  clown  in  writmg,  but  the  written  examination  is  lion. 
informal,  in  consequence  of  not  being  signed,  or  being  signed 
before  the  evidence  was  concluded,  or  not  being  properly 
headed,  or  from  some  other  cause  of  informality,  there  is  no 
longer  any  *ground  for  excluding  parol  evidence  ;  for  the  par-  [  *447  ] 
ol  evidence  is  in  such  cases  adduced,  not  in  substitution  of 
the  official  document,  but  according  to  it's  effect  at  common 
law.  (1)  The  informal  examination  may,  like  any  other  con- 
temporaneous document,  not  of  an  official  character,  be  used 
to  refresh  the  memory  of  a  witness  who  was  present.  (2) 
This  subject  will  be  more  particularly  considered  in  the  sec- 
ond part  of  tlie  Work,  in  which  the  proof  of  examinations  is 
treated  of  in  conjunction  with  the  proof  of  other  written  evi- 
dence. 

Although  a  parish  register  is  required  by  law  to  be  made  Fact  of 
of  all  marriages,  the  fact  of  a  marriage  may  be  proved  by  the  ""^"'^se- 
testimony  of  the  persons  who  were  present  at  it,  or  by  general 


oner  said  while  the  witnesses  were  under 
examination,  and  which  was  not  taken 
down,  not  being  part  of  his  defence. 

(4)  In  Rex  v.  Lewis,  6  C.  &  P.  162, 
in  which  Rex  v.  Harris  was  cited,  Gur- 
ney,  B.,  refused  to  receive  similar  evi- 
dence. In  Rex  V.  Rivers,  7  C.  ^  P. 
177,  parol  evidence  was  refused,  but  the 
examination  purported  to  have  been 
sworn,  and  the  magistrate's  signature 
was  held  to  be  conclusive  of  this  fact. 
In  Rex  u.  Walter,  7  C.  &  P.  267,  the 
magistrate  returned  that  the  prisoner  said, 
"  I  decline  to  say  any  thing."  After 
which,  Lord  Abinger  refused  to  hear  pa- 
rol evidence  of  a  confession  made  before 
the  magistrate. 

(5)  Rex  V.  M'Carty,  Macn.  4.5. 

(1)  Vide  in/ra,  part  2,  Proof  of  Ex- 
aminations. Examinations  not  signed, 
Rex  V.  Telicote,  2  St.  483.  Foster's 
case,  Lewin,  46.  Hirst's  case,  ifi.  Rex 
V.  Pressly,  6  C.  &  P.  183.  Not  signed, 
but  acknowledged  to  be  true,  Lambe's 
case,  2  Leach,  G25.  Not  read  over, 
signed  with  a  niark,  or  not  signed,  and 
not  proved  to  have  been  read  over  by 
the  magi.straie,  or  by  his  clerk.  Rex  v. 
Chapjtel,  .\1.  &  Ro.  :5!t.5.  Rex  v.  Rich- 
ards, and  Mux  v.  Hope,  ib.  396,  n.  7  C. 
&,  P.  136.     Rex  V.  Taylor,  ib.   138,  n. 


Rex  V.  Foster,  7  C.  8,-  P.  148.  Rex  v, 
Reading,  7  C.  ^  P.  649.  2  Hale,  ch. 
38,  ch.  7,  p.  52,  Informal  heading.  Rex 
V.  Bentiy.  6  C.  S,-  P.  148.  Rex  v.  Tar- 
rant, 6  C.  &P.  182. 

(2)  Layer's  case,  16  Howell,  214. 
Rex  V.  Tarrant,  6  C.  ^  P.  182.  Rex 
V.  Pressly,  6  C.  S,-  P.  183.  Hirst's  case, 
Lewin,  46.  Jones's  case,  Carr.  13. 
Devvherst's  .case,  Lewin,  47.  Rex  r. 
Bell,  5  C.  &  P.  163,  where  Rex  v. 
Flagg,  4  C.  .V  P-  566,  was  overruled. 
A  case  before  Lord  Lyndhurst,  cited  5 
C.  &.  P.  164,  n.  Rex  r.  Reason  and 
Tranter,  1  Str.  499.  Rex  v.  Watkins, 
4  C.  ^  P.  550,  n.  Rex  v.  Reed,  I 
iM.  &  I\I.  163.  See  Rex  v.  Lewis,  6  C. 
S)-  P.  163.  A  confession  written  by  a 
constable,  and  signed  with  the  prisoner's 
mark,  was  read  by  the  officer  of  the 
Court,  4  C.  &.  P.  548.  It  would  seem 
that  in  Lambe's  case,  2  Leach,  623, 
the  examination,  which  was  rend  over 
■  to  the  prisoner  and  acknowledged  by  iiiin 
to  be  true,  but  was  not  signed,  and  was 
afterwards  allowed  to  be  rend  by  the 
olllcer  of  the  Court,  was  not  received 
on  the  ground  of  it's  being  an  oliicial 
document.  It  has,  however,  been  fre- 
quently 80  considered.  See  Thomas'* 
case,  ib. 


406  Secondary  Evidence.  [Ch.   19. 

ropresentatioii.  (3)  [a]  It  will  be  seen,  in  the  second  part  of 
tliis  Work,  that  various  public  documents   arc   of   a  nature  to 

[  *44S  ]  *exclude  independent  evidence,  whilst  others  do  not  produce 
this  effect. 

Living  per-      ^[\q  substitution  of  the  hearsay  of  a  person,  not  produced, 

>ion  not  pio-  .  n     ■,   ■  ■  /•  11  1      •  1 

duced.  as  a  witness,  ni  the  ])lace  oi  his  testimony,  lalls  obviously 
within  the  princijjle  of  the  rule  under  consideration.  It  has 
been  seen,  that  even  in  cases  where  hearsay  evidence  is  ad- 
missible, it  is  required,  in  deference  to  the  rule  which  ex- 
cludes secondary  evidence,  that  it  should  be  shewn  that  the 
person  whose  hearsay  is  adduced,  is  deceased.  In  like  man- 
ner, it  will  be  seen  tliat  depositions  are  not  receivable,  whilst 
the  parties  who  made  them  are  alive,  or  at  least  producible  for 
the  purpose  of  giving  evidence.  (1)  [h) 
by  Hvin""^  The  evidence  of  the  admissions  of  living  persons  may  be 
persons.  Considered,  in  many  instances,  rather  as  not  falling  within  the 
rule,  than  as  exceptions  to  it.  In  many  cases,  in  which  it 
would  be  competent  to  call  as  witnesses  the  persons  making 
admissions  as  witnesses,  and  where,  though  they  have  the  op- 
tion to  give  evidence  or  not,  no  objection  might  be  made  by 
them,  the  evidence  of  the  admission  would  generally  not  be 
superseded  in  it's  effect,  by  the  testimony  of  the  person  who 
made  it.     The  admissibility  of  a  parol  admission  of  the  con- 

(3)  Evans  v.  Morgan,  2  Cr.  Sf  J.  45.3.         (1)  See  infra,  part  3,  Examination 

B,  N,  P,  247.     Allison's  case,  R.  &.  R.  of  Witnesses,  as  to  the  necessity  of  in- 

Burt  r.    Barlow,    Doug.    172.     Rex    v.  terrogating  a  witness,  as  to  his  acts    and 

St.  Devereux,  1  Bl.  367.     Reed  v.  Pas-  declarations  previously  to    calling   other 

ser,  Peake,  305.     Nor  is    the    evidence  witnesses  to    discredit    him.     As   to    the 

of  the    attesting    witnesses    required   to  causes  of  absence,  which  are  equivalent 

prove  the  handwriting  of  the    parlies   in  to  the  death  of  witnesses   for  the  present 

the  register,  Doug.  174.     But    an   entry  purpose,  vide  infra,  part  2.     To  prove 

of    a    marriage    in  a    day-book    is    not  damage  in  discontinuing  trade,    the   cus- 

admissible  in  evidence,  if  the  entry    has  tomers  must  be  called  to    give   evidence 

been  afterwards    made    in    the    register,  of  their  motives.     Telk  r.  Parsons,  2  C. 

May  V.  May,  Str.  1073,  and  see  Doe  d.  &  P.  201.     With    respect    to    answers 

Warren  v.  Bray,  8  B.  &  C.  813.     The  made  to  inquiries,  see   Rex    v  Denis,   7 

register  is  not  of  a  judicial   nature,   and  B.  &  C.  621.     Rex  v.  Morton,  4  M.    ^ 

relates  to  a  fact,  and  not   to   expressions  S.  48.      Rex   v.   Castleton,    6   T.    R. 

merely.  236. 


[a)  The  record  of  the  marriage  seems  to  be  the  proper  evidence  ;  7  Mass. 
48 — except  in  criminal  prosecutions  where  tlie  testimony  of  persons  present 
is  required.  9  Mass.  4<t3 ;  1 1  id.  92 ;  8  Greenl.  75  ;  7  J.  R.  314.  (See  (j  Conn. 
44G;  15  Mass.  163,  as  to  tJie  proper  evidence  in  trials  for  bigamy  and  crimi- 
nal conversation.     See  also  ante  p.  377  note;  and  7  Greenl.  58. 

The  common  law  mode  is  by  a  sworn  copy,  or  the  production  of  the  origi- 
nal ;  and  this  is  the  proof  in  New  York  ;  5  Cowen,  237 ;  15  J.  R.  22<>. 
As  to  the  proof  of  foreign  marriages ;  see  10  S.  «Si  R.  383. 

[b)  Although  depositions  regularly  taken  upon  a  bill  and  answer  in  chan-^ 
eery,  may  be  used  as  evidence  in  a  trial  between  the  same  parties,  provided 
it  be  proved  that  the  witnesses  are  dead,  or  by  reason  of  sickness  are  unable 
to  attend,  or  that  they  cannot  be  found,  or  are  absent  from  the  country,  or 
are  otherwise  not  amenable  to  the  process  of  the  court;  yet  they  can  be 
used  only  under  the  circumstances  mentioned.    2  Leigh's  R.  474. 


CIi.   19.]  Secondary  Evidence.  407 

tents  of  a  written  docnment  stands  upon  a  different  footingj 
and  cannot  be  considered  as  completely  settled  by  the  author- 
ities. (2)  In  other  cases,  the  admissions,  though  in  the  na- 
ture of  substitutionary  evidence,  appear  receivable  on  the 
ground  that  a  person's  own  expressions  and  actions  ought  to 
be  allowed,  as  against  himself,  to  raise  d>.  prima  facie  presump- 
tion of  the  truth  of  facts  which  those  expressions  and  actions 
imply. 

*The  rule  applies  not  only  to   the    evidence  produced  in  a  J^fi'">'esiiinjr 

,  ,  ,  .    /  .  ^  meiiiorv. 

cause,  but  also  to  such  writmgs    as  a  witness  may  use  to  re-  r  *449  1 
fresh  his  memory  ;  and  thereibre,    where  a   contemporaneous 
entry  has  been  made,  it  seems  that  a  copy  of  such  entry  made 
at  a  subsequent  period  is  not  admissible  for  the  purpose  of  re- 
freshing a  witness's  memory.  (1) 

It  is  an  established  rule,  that  where  there  are  duplicate  orig- 
inals, all  the  originals  must  be  accounted  for,  before  secondary 
evidence  can  be  given  of  any  one.  (2) 

Where  a  writing  is  not  the  fact  itself  to  be  proved,   and  not  Wriiinirnot 
made  an  appropriate  instrument   of  evidence  by  private  com-  oryeJil" 
pact,  nor  required  by  law,  there  is  no  ground  for  it's  excluding  deuce, 
oral  or  other  evidence.     It  often  happens  that  an  oral  commu- 
nication is  accompanied  by  one  in  writing  to  the    same  effect 
yet  the  oral  communication  may  be   received,  provided  it   be 
not  adduced  to  prove  the  contents  of  the  writing  and  in  sub- 
stitution of  it,  but  as  independent  evidence.     Thus,  the  pay- 
ment of  money  may  be  proved  by  oral  evidence,  though  a  re- 
ceipt be  taken.  (3)     Where  there  is  both  a  verbal  and  written 
notice  to  deliver  up  property,  it  is  not  necessary  that  the  writ- 
ten notice  should  be  produced.  (4) 

Where  a  written  statement  cannot  be  received  on  the 
ground  of  it's  being  in  the  nature  of  hearsay  evidence,  or  for 
want  of  a  stamp,  there  is  still  less  reason  for  prohibiting  the 
substance  of  it  from  being  proved  by  independent  testimony. 
Thus,  it  has  *been  seen,  an  informal  examination  taken  before  [  *450  ] 
a  magistrate  will  not  exclude  oral  evidence  of  what  a  prisoner 

(2)    Vide  supra   "  Admissions. ^' —  if  he  chose.     Ridley  «.  Guyde  1    INI.   & 

As  to  the  adtiii'siiin    of  tnarriuge    super-  llo.  197.     As  to  dying  declarations  tal^* 

seding  the  direct  proof  of  it.     lb.  en  down  in  writing,  II.  r.  (iray,  7  C.  & 

(1)  Per  I'atteson,  .f.,  in  Burton  v.  V.2'dl,  vide  infra,  that  u  confession 
Piummer,  2  A.  &  K.  344.  .loncs  r.  taken  down  by  a  constal)le,  and  signed. 
Stroud,  2  C.  &  P.  196.  Doe  u.  Perkins,  by  a  prisoner,  is  to  he  read  hy  liie  olii- 
3  T.  R.   749.  cer  of  the  (Jourt,  not  so  an  iniformal  ex- 

(2)  Per  Parke,  15.,  in  Alwin  v.  Furni-  atniiidlion  before  a  rniigistrate  thougii 
val,    I  Cr.  .M.  ^'  11.  292.  signed.     W'iiere  a  writing    is   signed   liy 

(3)  Kanibert  «.  Coiien,  4    Esp.    213.  tiio  party  to    be  allected  by  it,    ii    would 

(4)  Smith  r.  Young,  1  Camp.  439.  seem  that  ahlniugh  the  writing  was  a 
It  has  been  held,  tiial  a  witness,  on  thing  itself  lo  be  proved,  and  not  merely 
cross-examination,  may  admit  not  hav-  evidence,  yet  that  a  previous  or  contein- 
ing  mentioned  a  fact  in  cxaminatton  be-  poraneous  oral  declaration  would  not 
fore  commissioners  of  bankrupt,  but  that  necessarily  be  excluded,  whore  it  is  not 
he  might  ask  for  the  written  exumiiiulion  in  bubslitutioii  of  the   vvriticu   evidence. 


408 


Secondary  Evidence. 


[Ch.   19. 


Rosolu- 
tioiis  at  a 
meelhiff. 


Pnper  de- 
li veretl  by 
p/risoiier. 


has  stafed.  For  although  the  witness  is  allowed  to  refresh 
his  memory  by  reading  the  examination,  he  is  supposed,  in 
notion  of  law  at  least,  to  speak  from  his  memory  independ- 
ently of  the  written  paper.  Where  a  witness  read  over  to 
the  defendant  an  account  in  writing,  which  was  signed  by 
the  defendant,  but  which  could  not  be  used  in  evidence  for 
want  of  a  receipt  stamp,  the  witness  was  allowed  to  refresh 
his  memory  by  the  inspection  of  the  account,  and  to  prove 
that  he  called  over  the  items  to  the  defendant,  and  that  the 
defendant  admitted  them  to  be  correct.  ( 1 )  In  the  same  man- 
ner, what  a  party  says  admitting  a  debt  is  evidence,  notwith- 
standing the  promise  to  pay  is  reduced  into  writing.  (2) 

In  the  prosecution  of  Hunt  for  a  conspiracy,  (3)  the  Court 
of  King's  Bench  determined,  that  a  paper,  which  had  been 
delivered  by  the  defendant  to  a  person  present  at  a  meeting, 
as  a  copy  of  certain  resolutions  about  to  be  proposed  and  read, 
and  which  was  proved  to  correspond  with  the  resolutions  af- 
terwards proposed,  was  properly  received  at  the  trial  as  evi- 
dence of  those  resolutions  ;  without  proof  of  any  previous  no- 
tice to  the  defendant  to  produce  the  paper  from  which  the 
resolutions  were  supposed  to  be  read.  This  paper  was  con- 
sidered, as  against  the  party  himself  to  whom  it  applied,  to  be 
fully  as  good  evidence  as  any  that  could  be  produced.  In  the 
same  case,  (4)  the  Court  of  King's  Bench  held,  that  inscrip- 
tions on  flags  and  banners,  which  had  been  exhibited  to  pub- 
lic view,  might  be  proved  by  eye-witnesses,  speaking  to  what 
they  had  seen  on  the  occasion  ;  and  though  it  appeared  that 
the  flags  had  been  seized  and  taken  away  by  police  ofllcers, 
(so  that  they  might  have  been  produced,)  the  evidence  was 
not  considered  on  this  account  to  be  less  competent  ;  such  in- 
[  *45i  ]  scriptions  *are,  as  the  Lord  Chief  Justice  observed,  the  public 
expressions  of  the  sentiments  of  those  who  bear  them  and 
have  rather  the  character  of  speeches  than  of  writings.  It 
may  be  observed  that  the  oral  testimony  was  in  this  case  ad- 
duced for  the  express  purpose  of  re))resenting  accurately  the 
contents  of  the  writing,  and  therefore  might  seem  to  fall 
directly  within  the  principle  which  excludes  secondary  evi- 
dence. 

Whether  resolutions,  which  have  been  proposed  at  public 
meetings,  may  be  primarily  proved  by  the  parol  evidence  of 
witnesses,  when  the  person  proposing  the  resolutions  appeared 
to  read  them  from  a  written  paper,   was  a  point  much  discus-* 


Inscrip- 
tions. 


Resolutions 
7-ead,  prov- 
ed by  parol. 


(1)  Jacob  ?'.  Lendsay,  1  East,  461; 
nnd  see  Dalisoii  v.  Stark,  4  Esp.  163. 
In  Maugham  v.  Hubbard,  8  B.  Sf  C. 
14,  a  witness  called  to  prove  the  pay- 
ment of  money  was  allowed  to  refresh 
his  memory  by  an  unstamped  receipt 
signed  by  himself. 


(2)  Singleton  v.  Barret,  2  C.  &  J. 
369. 

(3)  Rex  V.  Hunt,  3  Barn.  8f  Aid.  568, 
572.  See  also  Watson's  case,  32  How- 
ell's St.  Tr.  68  83,  256,  257. 

(4)  Re.\  r.  Hunt,  3  Barn.  ^  Aid. 
574. 


Ch.  19.]  Secondary  Evidence.  409 

sed  ill  the  prosecution  of  Dr.  Sheridan  and  Kirwan,  in  Ire- 
land, (1)  who  were  tried  for  an  offence  againt  the  Irish  Con- 
vention Act.  The  indictment  began  with  averring  that  di- 
vers persons  had  assembled  together,  and  intending  to  procure 
the  appointment  of  a  committee  of  persons,  (of  a  particular 
description,  and  for  a  specific  object,)  entered  into  certain 
resolutions  respecting  such  committee,  the  purport  and  effect 
of  which  resolutions  were  set  out  at  length  ;  the  indictment 
then  proceeded  to  charge  Dr.  Sheridan  with  certain  acts  done 
by  him  for  the  purpose  of  assisting  in  forming  such  commit- 
tee, and  for  carrying  into  etlect  the  resolutions  before-men- 
tioned. To  prove  the  first  averment,  the  counsel  for  the 
prosecution  called  a  witness,  who  stated  that  at  a  general 
meeting  (at  which  it  was  admitted  the  defendants  were  not 
present.)  the  secretary  of  the  meeting  proposed  a  resolution, 
and  read  it  from  a  paper.  The  proposition  was  seconded ; 
the  secretary  then  handed  the  paper  to  the  chairman,  and  the 
chairman  read  it.  The  witness  was  then  asked,  "  What  was 
the  resolution  ?"  This  question  was  objected  to,  on  the 
ground,  that  the  absence  of  the  writing  itself  should  be  ac- 
counted for,  before  any  parol  evidence  of  its  contents  could  be 
received.  After  a  very  full  argument,  a  majority  of  the  Court 
were  of  opinion,  that  this  was  not  a  case  to  which  the  dis- 
tinction between  primary  and  secondary  evidence  *vvas  strict-  [  *452  1 
}y  applicable.  That  the  proposed  evidence  was  intended  to 
show,  not  what  the  paper  contained,  but  what  one  person  pro- 
posed and  what  the  meeting  adopted  ;  in  short  to  prove  the 
transaction  and  the  general  conduct  of  the  assembly  ;  and  that 
such  evidence  could  not  be  rejected,  because  some  person  pres- 
ent took  notes  of  what  passed.  The  form  in  which  the  argument 
was  presented  by  the  Solicitor  General,  was  more  striking  : — 
"  A  number  of  persons,"  he  said  •'  assemble  and  confer  togeth- 
er— they  agree  to  a  certain  resolution.  If  it  be  necessary  to 
prove  such  a  transaction  in  a  criminal  trial,  would  the  prose- 
cutor be  bound  to  produce  the  resolution  in  vv^riting  ?  Would 
the  prosecutor  be  bound  by  the  manner  in  which  it  was  taken 
down  by  one  of  the  confederates?  If  the  paper,  supposed 
to  contain  the  resolution,  were  produced,  would  that  preclude 
the  prosecutor  from  giving  evidence  of  other  matters  which 
took  place  ?  Or  suppose,  further,  that  the  matter  were 
reduced  to  writing  in  such  a  way  as  to  avoid  a  criminal  impu- 
tation, although  every  sentence  of  the  debate  or  conversation 
v/ere  criminal,  would  the  prosecutor  be  bound  bv  the  former, 
and  precluded  from  giving  evidence  of  the  latter?" 

(1)  1811.     31  Howell's  St.Tr.  672,  idence  .igainst  a  person  wlio  .loopt^    iliu 

and  see  Rex  v.  Moors,  6    Eiist,  420,  n.  printing  by   taking    nway    cupiuH,    W'liU 

In  the    OHne    of  printed   docuiiKjnIs,    all  son's   case,  2  St.  130. 
the  impressions  are  originalfl,  and  are  ev- 

52 


410 


Secondary  Evidence. 


[Ch.   19. 


Excep- 
tions. 
Records. 

Entry  in 

public 

books. 


Proof  of 

public 

officer. 


[  *453  ] 


2.  Proof  of 

j)ublic 

officer. 

Keveniie 
officer. 


Surrogate. 


Under- 
sheriff. 


Some  exceptions  to  the  rule  excluding  secondary  evidence 
require  to  be  noticed.  Where  it  is  necessary  to  prove  the 
contents  of  any  record,  or  of  proceedings  of  a  Court  of  Jus- 
lice,  or  of  entries  in  Court  Rolls,  or  in  public  books  or  regis- 
ters, it  is  sufficient  to  produce  an  examined  copy.  (1)  This 
is  on  a  principle  of  general  convenience,  and  because  it  is  ap- 
parent, that  if  the  contents  were  misrepresented,  there  would 
be  obvious  means  of  exposing  the  fraud  or  error.  (2) 

It  is  not,  in  general,  necessary  to  prove  the  Avritten  appoint- 
ments of  public  officers  ;  for  this  would  be  attended  with 
general  inconvenience,  and  a  strong  presumption  arises  from 
the  ^exercise  of  a  public  office,  that  the  appointment  to  it  is 
valid.  (1)  The  cases  upon  this  subject  sometimes  appear  to 
be  governed  by  the  doctrine  of  admissions,  but  it  will  be  seen 
by  the  examples,  that  the  exception  is  of  a  more  extensive 
nature.  In  the  case  of  all  peace-officers,  justices  of  the  peace, 
constables,  &c.  it  is  sufficient  to  prove,  that  they  acted  in 
these  characters,  without  producing  their  appointments.  (2) 
And  in  the  case  of  officers  of  any  branch  of  the  revenue, 
where  the  question  is  whether  they  are  such,  proof  of  being 
reputed  to  be  so,  or  of  having  exercised  the  office,  is  good  ev- 
idence of  the  fact,  on  any  indictment,  information,  action,  or 
prosecution.  (3)  On  an  indictment  for  perjury,  committed  by 
the  defendant  before  a  surrogate  in  an  Ecclesiastical  Court, 
proof  that  the  person,  who  administered  the  oath,  acted  as 
surrogate,  has  been  held  to  be  sufhcient  prima  facie  evidence 
of  his  appointment  and  authority.  (4)  On  a  like  indictment, 
an  affidavit,  purporting  to  be  sworn  before  a  public  commis- 
sioner, was  held  admissible,  without  proof  of  the  commission, 
on  the  ground  that  a  commissioner  for  taking  affidavits  was  a 
person  acting  as  a  public  officer.  (5)  And  proof  of  a  person's 
acting  as  under-sheriff  is  sufficient  proof  of  his  authority  to 
do  any  act  necessary  in  the  course  of  the  office  ;    as,  for  in- 


(1)  Vide  infra,  part  2.  This  doc- 
trine would  seem  not  to  apply  to  the 
case  of  every  official  niemorandurn, 
and  perhaps  not  to  every  species  of  pub- 
lic record;  but  it  appears  to  embrace  the 
proceedings  of  all  Courts,  whether  supe- 
rior or  inferior,  and  whether  of  record 
or  not.  It  will  be  seen  that  the  like  doc- 
uments may  sometimes  be  proved  by 
office  copy,  or  copy  by  authorized  offi- 
cer. 

(2)  Vide,  part  2,  proof  of  judicial 
and  other  public  documents. 

(1)  The  rule  has  been  held,  in  Equi- 
ty, not  to  apply  to  the  tithe  collector,  as 
acting  under  a  private  authority.  Short 
V.  Lee,  2  Jac.  Sf  W.  468.  !Nor  to  as- 
signees of  a  bankrupt,  Pasmore  v. 
Bromsfield,  1   Stark.   Ca.    296.     As   to 


the  agency  of  a  person  signing  notes  for 
the  Bank,  Rex  v.  Bigg,  3  P.  Wms.  427. 
In  Rex  V.  Jones,  2  Camp.  131.  A  let- 
ter purporting  to  come  from  the  Lords 
of  the  Treasury  was  read,  the  only  evi- 
dence of  their  acting  being  the  letter  in 
question. 

(2)  By  Bulier  J.,  in  Berryman  v. 
Wise,  4  T.  R.  366.  By  the  opinion  of 
all  the  .Judges  in  the  case  of  the  Gor- 
dons, tried  for  murder  in  1789,  Leach's 
Cr.  C.  585.     Rex  v.  Shelly,  381,  n, 

(3)  St.  26  Geo.  iii.  c.  77,  s.  13,  St.  26 
Geo.  in.  c.  82,  s.  6;  and  see  St.  11 
Geo.  I.  c.  30,  8.  32. 

(4)  Rex  V.  Verelst,  3  Camp.  432. 
Rex  «.  Creswell,  Lond.  Sitt.  after  Mich. 
1816,  S.  P. 

(5)  Rex  V.  Howard,  1  M.  8f  Ro.  187 


Ch.  19.]  Secondary  Evidence.  41t 

stance,  to  make  an  assignment  of  a  lease,  under  an  execution, 
in  the  name  of  the  sheritf.  (6)  (a)       The  hke  proof  was  held 
sufficient  on  the  part  of  a  plaintiff  of  his  being    vestry-clerk  ;  ^'^siry- 
and  the  rule  was  said  to  extend  to  all  public  officers.  (7) 

*The  rule  of  exclusion  has  been  relaxed  in  some  cases  Voinmiuoiis 
where  the  evidence  is  the  result  of  voluminous  facts,  or  of  f'^^Y'/i  l 
the  inspection  of  many  books  or  papers,  the  examination  of  '^  '^  -^ 
which  could  not  conveniently  take  place  in  Court.  Thus  a 
witness  may  be  asked  as  to  a  practice  of  accepting  bills  drawn 
in  a  particular  manner,  without  producing  the  bills.  (1)  In 
this  case  Lord  Ellenborough  observed,  that  parol  evidence 
might  be  received  of  one  unvaried  mode  of  dealing  between 
parties  by  means  of  bills  of  exchange  ;  but  that  if  the  mode 
of  dealing  varied,  the  bills  must  be  produced.  So  a  witness 
may  give  evidence  of  a  general  balance  of  accounts.  (2)  A 
witness  may  be  interrogated  as  to  his  examination  of  old  rec- 
ords, and  may  state  that  they  correspond  in  substance  with  a 
particular  record  which  has  been  read,  without  going  through 
the  whole  in  detail,  subject  however  to  a  full  cross-examina- 
tion. (3)  Where  the  question  is  as  to  the  solvency  of  a  party 
at  a  particular  time,  a  witness  may  speak  to  the  general  result 
of  his  inquiries,  as  derived  by  the  accounts  rendered  by  a 
bankrupt  of  his  affairs.  (4) 

It  has  been  already  noticed,  that  the  rule  is  not  in  general  yoiredire. 
enforced  upon  examination  on  the  voire  dire  owing  to  the  pe- 
culiar circumstances  under  which  those  examinations  take 
place  :  but  that  it  prevails  where  an  inquiry  is  made  for  the 
purpose  of  disqualifying  a  witness  on  the  ground  of  infamy, 
in  consequence  of  a  previous  conviction,which  is  capable  of  be- 
ing proved  by  matter  of  record.  Notices  of  the  dishonor  of  Notices, 
bills,  notices  to  quit,  and  attorney's  bills  of  charge  delivered 
under   the    statute,  may  be   proved   by  secondary    evidence, 

(6)  Doe  dem.  James  v.  Brawn,  5  (2)  Roberts  r.  Doxen,  Peake,  S.3. — 
Barn.  &  Aid.   243.  In  I'urness  v.  Cope,  5  Ring  114,  a  bank- 

(7)  M'Gahey  v.  Alston,  2  M.  8,-  AVel.  rupt's  ledger  was  received,  to  prove  tbnt 
211.  The  same  has  been  held  by  Ten-  a  person  bad  no  funds  in  the  bank,  with- 
lerden,  as  to  a  clerk  of  trustees  under  a  out  calling  the  clerks  who  made  the  en- 
turnpik'e  act.     The  rule  would  seem    to  tries. 

prevail  even  in  actions  for  libel  Peri'arke,  (3)   Rowe  v.  Brenton,    3    M.    &,    R. 

\\.,ib.    209.     Per    Tindal,    Ch.    .1.,   in  212. 

Cannel  r.  Curtis,  2  Bing.  N.  C.  234.—  (4)  Assignees  of  Meyer  v-  Sefton,  2 
From  the  cases,  where  the  acting  in  a  St.  274.  It  was  observed  by  llolroyd, 
particular  capacity  is  proof  against  a  par-  J.,  that  the  like  evidence  had  been  re- 
ly by  way  of  admission.  Vide  supra,  ceived  by  Lord  Kenyon,  as  from  the  na- 
p  3g9_  ture  of  the  case,  such  an  impiiry  could 
(1)  Spencer  w.  Billing,  3  Camp.  310.  not  be  made  in  Court. 


[a)  A  (loputy  shoriff  was  pormittod  to  prove,  flint  iio  snizpd  a  p.irtiriilftr 
horso  on  execution,  as  llie  property  of  tho  execution  debtor. !)  Pick.  CiH. 


412 


Secondary  Evidence. 


[Ch.   19. 


Orijjinal 
evidence 
not  avail- 
able. 

[  *455  ] 

5lissinf^ 
(locumeiils. 


Absent  wit' 
nesses. 


without  giving  a  notice  to  produce  or  shewing  the  loss  of  the 
original  evidence.  {5){a) 

*Where  the  production  of  evidence  indicates  the  existence 
of  other  evidence  of  a  more  original  character,  still  if  it  can  be 
shewn  that  the  better  evidence  is  not  attainable,  the  principle 
of  the  rule  will  not  apply.  (1)  {b)  With  respect  to  the  proof 
of  documents,  it  is,  in  general,  permitted  to  give  secondary  ev- 
idence of  them,  where  they  are  destroyed  or  lost,  or  where 
they  are  in  the  possession  of  an  adversary  who  refuses  to  pro- 
duce them,  or  are  not  available,  in  consequence  of  some  rea- 
son of  public  policy,  or  of  consideration  for  the  interests  of 
witnesses.  This  subject  involves  several  subordinate  ques- 
tions of  great  practical  importance,  as,  for  example,  the  neces- 
sary search  after  documents,  and  the  due  notice  to  produce 
them  ;  which  will  be  more  particularly  considered  in  treating 
of  written  evidence. 

With  respect  to  the  case  where  the  more  original  evidence 
consists  in  the  testimony  of  an  individual,  the  practical  ques- 
tions chiefly  occur  in  regard  to  the  absence  of  attesting  wit- 
nesses, or  of  persons  who  have  made  depositions.  Where 
there  is   not  sufficient   proof  that  the  parties  are    dead,  some 


(5)  Notice  of  dishonor,  Kine  v.  Benu- 
mont,  3  Br.  &  B.  288.  Attorney's  bill. 
Colling  u.  Trevveek,  6  B.  &  C.  895.  It 
is  not  necessary,  that  such  notices  should 
be  proved  by  duplicate  originals,  or  con- 
temporary copies,  ib.  Ackland  v.  Pearce, 
2  Camp.  601.  If  a  notice  to  quit  be 
attested,  the  attesting  witness  must  be 
called,  Doe  v.  Durntord,  2  M.  Xr  S.  62. 


Such  notices  are  usually  proved  by  dupli- 
cate originals,  or,  at  least,  by  examined 
copies. 

(1)  Inscriptions  on  walls  and  fixed  ta- 
bles do  not  admit  of  being  proved,  oth- 
erwise than  by  secondary  evidence,  Doe 
d.  Coyle  v.  Cole,  6  C.  A:  P.  360.  Rex 
V.  Fursey,  6  C.  &  P.  81. 


(a)  Notices.  See  Smith  v.  Hawthorn,  3  Rawle,  3.55-  A  notice  to  an  en- 
dorser, relates  to  a  few  simple  facts,  and  it  has  been  usual  to  prove  it  with- 
out calling  on  the  party  to  produce  the  written  notice  received  by  hirn.  3 
Pick.  ISO.  So,  the  purchase  of  personal  property  may  be  proved  without 
producing  the  bill  of  parcels.     8  id.  55*2. 

[b]  Missmg  documents.  If  any  suspicion  hangs  over  the  instrument,  or 
that  it  is  designedly  withheld,  a  more  rigid  inquiry  should  be  made  into  the 
reasons  for  its  non-production.  But  where  there  is  no  such  suspicion,  all 
that  ought  to  be  required  is  a  reasonable  diligence  to  obtain  the  original, 
By  Thompson,  J.  7  Pet.  99. 

Certain  promissory  notes  were  entrusted  with  the  clerk  of  the  court ;  and 
it  appeared  from  his  testimony  that  they  were  lost,  and  that  he  could  not 
find  them.  Held,  that  this  was  a  proper  case  to  let  in  evidence  of  the  con- 
tents ;  and  the  attorney  of  record  was  a  proper  witness  to  prove  the  facts. 
Jones  V.  Fales,  5  Mass.  101,  Presumptive  evidence  of  the  loss  is  sufficient. 
5  Pick.  436. 

A  writing  was  left  with  a  friend,  who  removed  and  left  the  paper  with  his 
father,  who  died.  After  proof  of  these  facts,  a  witness  swore,  that  after  the 
father's  death,  he,  together  with  the  son-in-law,  to  ivhom  all  his  papers  came, 
made  diligent  search  among  the  father's  papers,  but  could  not  find  the  writ- 
ing. It  was  held  that  this  was  sufficient  proof  of  the  loss  to  let  in  the  sec- 
ondary evidence,  without  the  oath  of  the  son-in-law,    6  Binn.  59. 


Ch.   19.]  Secondary  Evidence.  413 

difficulty  often  arises  as  to  whether  any,  and  what,  causes  of 
absence  shall  be  sufficient  to  allow  of  the  admission  of  second- 
ary evidence.  The  search  after  absent  witnesses  is  another 
point  of  considerable  practical  importance.  These  matters 
will  be  more  particularly  considered  in  treating  of  written  ev- 
idence, in  which  part  of  the  work  it  will  also  be  more  conve- 
nient to  examine  the  cases  where  the  proof  of  documents  by 
attesting  witnesses  may  be  dispensed  with,  from  various  oth- 
er causes,  besides  that  of  not  being  able  to  procure  their  at- 
tendance. It  may  be  proper,  however,  to  observe  in  this 
place,  that  where  it  is  proposed  to  discredit  a  witness,  in 
which  case  it  is  proper  to  give  him  an  opportunity  of  explain- 
ing his  own  acts  and  declarations  previous  *to  proving  them  i  #45^  i 
by  other  witnesses,  (such  inquiry  not  being  irrelevant  to 
the  issue,)  it  is  necessary  to  examine  the  witness  sought  to 
be  discredited  as  to  these  matters,  in  the  first  instance,  not- 
withstanding his  answers  would  tend  to  criminate  him- 
self. (1) 

Where  original  evidence  is  not  available,  many  questions 
have  arisen,  as  to  what  shall  be  deemed  sulficient  secondary 
evidence.  These  questions  usually  occur  in  the  proof  of  doc- 
uments, and  will  therefore  be  more  conveniently  treated  of  in 
the  second  part  of  the  work.  (2) 


CHAPTER  XX. 

ON  PRESUMPTIVE   EVIDENCE. 

In  the  preceding  chapters  we  have  considered  the  various 
rules  for  the  exclusion  of  evidence  ;  we  now  proceed  to  treat 
more  particularly  of  the  quality  of  evidence.  Where  a  fact 
is  not  of  a  nature  of  which  a  Court  will  take  judicial  cogni- 
zance, it  is  sometimes  proved  by  the  immediate  inspection  of 
a  jury,  but  more  frequently  by  the  actual  witnesses  of  it,  and 
occasionally,  under  the  limitations  which  wc  have  noticed,  by 
hearsay  or  secondary  evidence.  It  is  proposed,  in  the  present 
chapter,  to  treat  of  the  quality  of  the  evidence  in  cases  where 
the  facts,  to  be  proved  by  any  of  the  above  means,  are  not  the 
precise  facts  in  issue,  but  where  the  jury  arrives  at  a  conclu- 

(1)  The  Queen's  case,  2  Y>r.  S,-  B.  Meek,,  2  Y.  4- .T.  116.  A  uiacliine  not 
313.  Sen  lidiiiunstonev.  Webb,  3  Esp.  copy,  Nixlin  w.  Murry,  3  Camp.  2:JM. 
244.  Vide  itifra,  part  3,  Examina-  Ilex  v.  Watson,  2  St.  129,  11.  I)u  I'.er- 
tion  of  Witnesses.  inger's  ciise,  ib.     Ilolliind  ru  Reeves,    7 

(2)  To  the  s.iiiie  pari  of  the  work  l)e-  C.  &,  P.  3().  .As  to  post-iriiirkn  iinil 
Ion"  the  f|uesiioris,  wlietlier  piirticuhir  marks  of  double  poslnge.  Ilex  v.  I'lum- 
documetits  are  the  Ijest,  or  secoiidiiry  mer,  II.  Sf  11.  2(i4.  As  lo  ilupliiMto 
evidence.  A  CDuntorpart  is  original  ev-  originals,  see  per  Hayloy,  .1.,  in  (,'olling 
idence,  Burleigh  v.  Stibbs,  4  T.  II.  465.  v.  Trewcek,  6  B.  <^  C.  3!)S. 

Roe  V.    Davis,  7    Kast,    363.     Paul   v. 


414  On  Presumptive  Evidence.  [Ch.'20. 

sion,  upon  the  points  submitted  to  them,  by  an  act  of  reason- 
ing. The  evidence  in  such  cases  is  said  to  be  presumptive. 
[  *A57  ]  In  tlie  first  section  will  *be  considered  the  presumption  of  or- 
(Jinary  occurrence,  wliicli  are  usually  made  by  Courts  and  ju- 
ries ;  and  in  the  second,  the  relevancy  of  presumptions  will 
be  treated  of. 

Section  I. 

Presumptions  made  by  Courts  and  Juries. 

"A  presumption  of  fact,"  says  Lord  Tenterden  (1)  "is, 
properly,  an  inference  of  that  fact  from  other  facts  that  are 
known  ;  it  is  an  act  of  reasoning.  It  is  chiefly  in  those  instan- 
ces, where  a  sanction  has  been  given  by  the  Judges,  to  infer- 
ences, which  a  jury  are  to  draw  in  particular  cases,  and  which 
are  called  presumptions  of  law,  that  presumptive  evidence  be- 
comes a  subject  of  legal  science  ;  nevertheless  it  may  be  useful 
to  advert  to  some  authorities  respecting  presumptions  in  gene- 
ral, whether  of  fact  or  of  law." 

ex^^^aua"-*^         In  drawing  an  inference  from  facts  proved,  regard  must  al- 

tion.  ways  be  had  to  the  facility  that  appears  to  be  afforded  for  ex- 

planation or  contradiction.  No  person  is  to  be  required  to  ex- 
plain or  contradict,  until  enough  has  been  proved  to  warrant  a 
reasonable  conclusion  against  him  in  the  absence  of  explana- 
tion or  contradiction ;  but  when  such  proof  has  been  given, 
and  the  nature  of  the  case  is  such  as  to  admit  of  explanation 
or  contradiction,  human  reason  cannot  do  otherwise  than 
adopt  the  conclusion  to  which  the  proof  tends,  if  no  explana- 
tion or  contradiction  is  offered.  (2) 

Corpus  Lord   Stowell  observes,  that  when  a  criminal  fact  is  ascer- 

tained, presumptive  proof  may  be  taken  to  shew  who  did  it, 
in  order  to  fix  the  criminal,  having  then  an  actual  corpus  de- 
licti ]  but  to  take  presumptions,  in  order  to  swell  an  equivo- 
cal and  ambiguous  fact,  into  a  criminal  fact,  is  an  entire  mis- 
application of  the  doctrine  of  presumptions.  (3)  Hov/ever,  on 
proper  occasions,  the  same  learned  Judge  was  accustomed  to 

r  *458  ]  resort  to  presumptive  *evidence  for  the  purpose  of  testing  the 
truth  of  positive  testimony,  especially  that  presumption  which 

Evidentia  arises  from  the  conduct  of  the  parties  at  the  time  of  a  transac- 
tion, the  evidejitia  rei,  as  he  was  used  to  call  it,  and  which 
will  generally  be  found  to  lead  to  a  conclusion  incompatible 
with  direct  testimony,  where  such  testimony  is  invented  or 
exaggerated.  (1) 

(1)   In  Rex  r.    Burdett,    4  B.    &.    A.  Lord  Tenterden,  in   Rex  v.  Burdett,   4 

161.  B.  4*  A.  162,  as  to  the  proof  of  the  cor- 

(2)  Per  Lord  Tenterden,   in   Rex   v.  pus  delicti. 
Burdett,  4  B.  ^  .4.  162.  (1)  Evans  r.   Evans,    1    Hagg.    Con. 

(3)  Evans  r.  Evans,    1    Hagg.    Con.  Rep.    105,    112.     See    Lord    tJtoweH'.'* 
Rep.  105.     And  see  the  observations   of  observations  on   the  circumstantial   evi- 


ret. 


Sect,   l.j       Presumptions  by  Courts  and  Juries.  415 

Where  it  appears  that  on  one  side  there  has  been  forgery  Fraud. 
or  fraud  in  some  material  parts  of  the  evidence,  and  they  are 
discovered  to  be  the  contrivance  of  a  party  to  the  proceeding, 
it  affords  a  presumption  against  the  whole  of  the  evidence  on 
that  side  of  the  question,  and  has  the  effect  of  gaining  a  more 
ready  admission  to  the  evidence  of  the  other  party.  (2) 

With  respect  to  the  comparative  weight  due  to  direct  and  Direct  nud 
presumptive  evidence,  it  has  been  said,  that  circumstances  are  siamini 
in  many  cases  of  greater   force  and  more   to  be  depended  on  evideuce.. 
than  the  testimony  of  living  witnesses :  inasmuch  as  witness- 
es may  either  be  mistaken  themselves,  or  wickedly  intend  to 
deceive  others,  whereas  circumstances  and  presumptions  nat- 
urally  and    necessarily  arising  out   of  a  given   fact  cannot 
lie.  (3)  (a)    It  may  be  observed,  that  it  is  generally  the  prop- 
erty of  circumstantial  evidence  to  bring  a  more  extensive  as- 
semblage of  facts  under  the  cognizance  of  a  jury,  and   to  re- 
quire a  greater  number  of  witnesses  than  v/here  the  evidence 
is  direct,  whereby  such  circumstantial  evidence  is  more  capa- 
ble of  being  disproved  if  untrue.  (4) 

On  the  other  hand,  it  may  be  observed,  that  circumstantial 
*evidence  ought  to  be  acted  on. with  great  caution,  especially  [  *459  ] 
where  an  anxiety  is  naturally  felt  for  the  detection  of  great 
crimes.  This  anxiety  often  leads  witnesses  to  mistake  or  ex- 
aggerate facts,  and  juries  to  draw  rash  inferences  ;  there  is 
also  a  kind  of  pride  or  vanity  felt  in  drawing  conclusions  from 
a  number  of  isolated  facts,  which  is  apt  to  deceive  the  judg- 
ment. Not  unfrequently  a  presumption  is  formed  from  cir- 
cumstances which  would  not  have  existed  as  a  ground  of 
crimination,  but  for  the  accusation  itself;  such  are  the  con- 
duct, demeanor,  and  expressions  of  a  suspected  person,  when 

dence  leadiiiw  to  the  presumption  of  the  great  cause  of  A nnesly  r.  Lord  Anglesea, 

fact  of  ."Adultery,  which    he  observes,  is  and  the  opinion  quoted  by  him,  ih.  9  St. 

rarely  proved  by  direct  testimony,  Love-  Tr.  426,  17  Howell,   1430.   It  was  said, 

den  V.  Loveden,  Hagg.  Com.    Rep.  vol.  the    presumptions    in    that  case,   arisinj^ 

ii,  page  2.  Cadogan  v.  Cadogan,  2  Hagg.  from    kidnapping,   and    the    prosecution 

4,11.     Chambers  t).  Chaaibers,  1  Hagg.  for  murder,  were  stronger  than    the  evi- 

444.     Williams  v.    Williams,    ih.    294.  dence  of  a  thousand  witnesses. 

Elvves  t)    Elwes,    ib.  217.    Hammerton  (4)  See  the  observations  of  Mr.  Benlh- 

«.  Hainmerton,  2  Hagg.    2  Ser.  14.  am,  on  the  probative  force  of  circumstan- 

(2)  See  Mr.  A.   Stewart's    Letters    to  stantial  evidence,  Ualionulc    of  Judicial 
Lord  Mansfield,  upon    the  Douglas  case.  Evidence,  vol.  3.   p.  251. 

(3)  Charge  of  Mountenoy,  15.,  in  the 


(a)  See  the  observations  of  Story,  J,  1  Gall.  R.  104.  Testimony,  however 
positive,  must  in  its  nature  be  liable  to  control  by  strong  presumptive  cir- 
cumstances, and  must  be  weighed  with  care,  when  it  coinos  h'adod  with  tiie 
temptations  of  private  interest,  and  the  impressions  of  personal  penalties. 
It,  is  a  melancholy  consideration  for  the  court,  that  in  the  discharge  of  pub- 
lic duty,  it  finds  itself  often  obliged  to  resist  the  influence  of  human  declar- 
ations, and  to  rely  upon  the  concurrence  of  probable  circumstances. 


416  On  Presuntptive  Evidence.  [Ch.  20. 

scrutinized  by  those  who  suspect  him.  (1)  And  it  may  be  ob- 
served that    circumstantial    evidence,  which  must  in  general 
be  submitted  to  a  Court  of  Justice  through  the  means  of  wit- 
nesses, is  capable  of  being  perverted  in  like  manner  as  direct 
evidence  ;  and  that,  moreover,  it  is  subjected  to  this  addition- 
al infirmity,  that  it  is  composed  of  inferences  each  of  which 
may  be  fallacious. 
Tresiimp-         The  principal  authorities  concerning  presumptive  evidence 
<>"•  Ye\d,tQ  to    particular  presumptions  of  law.     These  are  of  two 
Conclusive  dcscriptions ;  First,  where    the    presumption  is  conclusive  in 
lionl"'"''"     i'^'s  nature,  being  in  fact  a  rule  of  law,  which  is  capable  of  be- 
ing withdrawn  altogether  from  the  consideration  of  a  jury,  and 
which,  if  successive  juries  were  to  disregard  it,  would  be  en- 
forced by    granting   as  many  new    trials,    the    presumption 
(though  usually  a  part  of  the  common  law)  being  as  obligato- 
Authorizeti   ^^  iipou  juries  as  any  ])art  of  the  statute  law  :  (2)    Secondly, 
))resiinii)-     whcu  the  prcsumptiou  is  authorized  by  having  received  great- 
''°"^"  er  or  less  judicial  sanction,  and  by  .Judges  being  in  the  habit 

of  recommending  it's  adoption  in  terms  more  or  less  strong, 
but  where  it  cannot  be  wholly  withdrawn  from  the  consider- 
ation of  a  jury,  and  when,  though  juries  were  to  repudiate  it, 
[  *460  ]  a  new  trial   would  *not  be    granted  as  a  matter  of  certainty, 
and  probably  not  above  one  or  two  new  trials  would  be  grant- 
ed in  any  case. 
Conclusive       ^\\e  first  sDCcies  of  presumptions  may  be  again  divided  into 
tions,  two  kinds,  first,  when  the  presumption  admits  of   no  proof  to 

species  of.    ^^^^  contrary,  and  secondly,  where  it  only  afibrds  a,  prima  fa- 
cie inference,  which  is  conclusive  only  in  the  absence  of  proof 
to  the  contrary. 
Presump-         In  the  history  of  the  law,  several  presumptions  which  were 

lions  oi  inw  ■ 

when  estab-  at  One  time  deemed  conclusive    by  the  courts,    have,    by  the 
hshed.  (a)    opiuious  of  later  Judges,  acting  upon  more    enlarged    experi- 
ence, become  conclusive  only  in  the  absence  of   proof  to  the 
contrary,  or  have  been  treated  as  wholly  within  the  discretion 

(1)  Of  the  suspicious  conduct  some-  506.  Burnet's  Criminal  Law  of  Scot- 
times  exhibited  by  innocent  persons  un-  land;  Harris's  Criminal  Law  of  Scotland, 
der  accusation  of  crimes,  a  remarkable  I'aley's  Moral  Philosophy;  Evan's  Ap- 
instance  is  mentioned  by  Lord  Hale  in  pendix  to  Pothier,  339;  Bentham's  lla- 
his  pleas  of  the  Crown.  On  the  dan-  tionale  of  .ludicial  Evidence,  vol.  v., 
gers  of  circumstantial  proof,  see  defence  which  contains  many  valuable  sugges- 
of  Donellan,  published  by  his  solicitors,  tions  on  the  subject. 
A.  D.  1781.  On  the  general  subject  of  (2)  Presumptions  of  this  kind  were 
Presuntptive  Evidence,  see  7  Howell's  distin«;uished  by  the  civil  law  by  the  ap- 
St.  Tr.  1529,  n.  14  vol  1230,  1229,  j)e\[aUon,  Presumptiu  juris  et  de  jure. 
1246;  17    vol.    1430,    1341;  33   vol. 


(a)  Presumptions  of  law.  If  an  executor  after  the  inakinp  of  his  ivill 
transfer  a  specific  legacy.,  the  presumption  of  law  is,  that  his  intention  was 
to  adeem  it.  White  v.  Winchester,  6  Pick.  48 ;  ]4  J.  R.  324.  See  Stout  v. 
Hart,  2  Hals.  414 ;  Walton  v.  Walton,  7  J.  Ch.  R.  262. 


Sect.  1.]      Presumptions  by  Courts  and  Juries.  417 

of  juries.  In.  modern  times,  many  presumptions  have  been 
established,  which  convenience  or  general  experience  have 
dictated,  and  which  are  binding  upon  juries,  until  they  are 
rebutted.  Several  presumptions  of  this  nature  have  been  cre- 
ated by  the  Courts  ;  others  have  been  made  by  act  of  ])arlia- 
ment,  and  this  principally  in  cases  of  revenue  and  penal  stat- 
utes. (1) 

With  respect  to  those  presumptions  of  law,   Aviiich  are    not  Auihomed 
considered  imperative  upon  juries,  the  occasions,  upon    which  [ons^'iiow 
Judges  have  afforded  their   sanction    and  authority  to    them,  ^'""ctwtieiJ. 
have  been  various.      In  some  cases,  it  has  been  said,    a  jury 
ought  to  have  drawn  a  particular  inference  which    they  have 
not  drawn,  and  a  new   trial  has    consequently  been   granted. 
In  others,  the  Court  lias  observed,  that  a  jm-y  or  inferior  Court 
have  not  improperly  acted  upon  a  particular  presumption,  and 
that  therefore  the  decision  ought  not    to  be  interfered    with. 
It  has  not  unfrequently  happened  that  the    same  presumption 
has  been  spoken  of  by  some  Judges  as  a  rule  of  *law  ;  whilst  [  *4G1  ] 
by  others,  it  has  been  treated  merely  as  lit  to  be  recommended 
to  a  jury,    or  as   one   which   a  jury    might   properly  make. 
Though  the    presumptions   under    consideration    are    strictly 
within  the  province  of  a  jury,  the  language  of  Courts  expres- 
sed in  regard  to  particular  presumptions-  may,   in    general,  be 
expected  to  have  considerable  influence  in   the   determination 
of  future  cases,  whether  by  a  Court   or  a  jury,    in  which    the 
like  presumption  may  arise. 

The  presumption  of  prescriptive  rights  or  of  obligations 
Irom  modern  user,  is  seldom  warranted  in  point  of  fact,  or  real- 
ly entertained  by  juries.  It  seems,  however,  improper  for 
a  Judge  to  leave  the  presumption  to  a  jury,  where  modern  us- 
er, is  uncontradicted,  as  one  which  it  was  competent  for  thoni 
to  make  ;  they  should  rather  be  irjstructed,  that  tliey  o//^'Vi^ 
to  make  the  presumption.  (1) 

In  a  recent  case,  the  Court  of  Common  Pleas  Avere  e(pially 
divided  upon  the  question,  whether  a  second  new  trial  slioidd 
be  granted  in  a  case  where  the  court    appeared    satisfied   that 

(I)   A  retnail<able  example  of  a  stat-  15.,  in  JenUins  v.  Harvey,  1  Cr.  !\I.  &  \\. 

ulory  presumption,  was  tlial  which    was  894.     'I'he  us-ige  hud    existed    lor  iiior« 

founded  on  a  concealment    of  birlli,    by  than  seventy  years.      It    was    asUed    by 

the  repealed  statute  of  21    Jac  1,  c.  27.  the  Court,  that  if  juries  were    at    liberty 

See  Ashford  v.  Thornton,    1    B.    &    A.  to     make    the    presumption    or    not,   at 

40.5,  where  the  nature  of  those  presump-  their    discretion,    what    would     become 

tions  is  considert^d    which  were    deemed  of  moduses  .'     In  Kex  v.  .(olili'e,  2  J{.  isc 

Buflicient  to  support  a  counter  plea  to  the  C    54,  I,ord  Tenlerden,  f'h.    J.,   speak* 

wager  of  liallie.      It    was    observed    by  of  modern  user  as  alVordiiii;    cogent    evi- 

Abbot,    .(.,   that    the    instances  put    by  dence  of  pre>cri])tion;  and,  ho  observes, 

I'.racton,  were,  in  his  opinion,  not   suffi-  that  it  is  fit   to    reromnittid    a   jury    to 

cient,  though  at  the  time  Bracion  wrote,  make    tiio    presumption.      h\    that    case 

they  were  considered  as   conclusive  pre-  the  usage  had    existed    only    for   twenty 

suiiiptions.  years. 

(I)  See  per  Parko,  B.,  and  Aldernon, 


41S  On  Presumptive  Evidence.  [Ch.  20. 

the  jury  had  acted  in  direct  opposition  to  the  presumption  of 
unseaworthiness,  arising  from  a  ship  recently  after  sailing  be- 
coming distressed  without  any  adequate  cause ;  which  pre- 
sumption has  been  sanctioned  by  great  legal  authorities,  and 
lias  by  some  eminent  Judges  been  expressly  called  a  rule  of 
law.  (2) 
Partiruiar  jj^  secms  to  be  a  presumption  not  admitting  of  proof  to  the 
tions.  contrary,  that  a  person  under  the  age    or  lourteen  is  unable  to 

■Age.  commit  the  crime  of  rape,  (3)  and  also,  that  an   infant    under 

[  *462  ]  *the  age  of  seven  cannot  be  guilty  of  felony,  (1)  and  it  is  a 
prima  facie  presumption  of  law,  that  a  person  under  the  age 
of  fourteen  is  not  guilty  of  a  felonious  intention,  until  evidence 
is  produced  to  show  that  he  is  doli  capax  ;  for  then,  it  is  said, 
malitia  supplct  cctate-m.  (2) 
^^gitima-  j^  ^  child  be  born  after  the  marriage  of  the  mother,  and 
during  the  husband's  life,  it  is  presumed  to  be  legitimate.  It 
was  formerly  an  established  doctrine  of  the  Courts,  that  this 
presumption  in  favour  of  legitimacy  could  not  be  rebutted, 
unless  the  husband  was  incapable  of  procreation,  as  from  im- 
potency  or  old  age,  or  was  absent  beyond  the  four  seas  during 
the  whole  period  of  the  wife's  pregnancy.  (3)  This  doctrine 
was  not,  however,  conformable  to  earlier  legal  authorities.  (4) 
In  later  times  it  came  to  be  established,  that  the  presumption, 
in  favour  of  the  legitimacy  of  the  child  of  a  married  woman, 
might  be  rebutted,  if  it  were  shewn  that  the  husband  had  not 
opportunity  for  sexual  intercourse  within  such  a  period  of 
time  before  the  birth  of  the  child,  as  admits  of  his  having 
been  the  father.  And  in  the  jiresent  day,  even,  where  a  hus- 
band and  wife  have  had  opportunities  for  sexual  intercourse, 
at  a  time  when  the  husband  might  have  become  the  father  of 
the  child,  a  court  or  jury  are  at  liberty  to  infer  from  the  cir- 

(2)  Foster  v,  Steele,  C.  B.  Tiiri.  T.  executed  for  arson,  and  a  boy  of  the  age 
A.  D.  1837.  Douglds  I'.  Scougal,4  of  ten  for  murder.  The  age  of  witness- 
Dow.  269.  Parker  u.  Potts,  3  Dow.  23.  es  was  formerly  regulated  Ijy  the  prac- 
Watson  r.  Clark,  1  Dow  32.  lice  of  the  Courts.     In  the  Banbury  Peer- 

(3)  I  Hale's  P.  C.  630.  Rex  v.  age  case.  Sir  S,  Romilly  argues,  that  it 
Groombridge,  7  C.  &-  P.  582,  where  it  is  a  presumption  of  English  law  that 
was  held  that  the  presumption  was  not  parties  are  never  too  old  to  beget  chil- 
affected  by  the  statute  9  Geo.  4,  c.  31.  dren;  but  it  would  seem  that  the  doc- 
Rex  V.  Eldershaw,  3  C.  4"  P-  396,  un-  trine,  as  far  as  it  is  a  positive  rule  of  law, 
less  as  a  principal  in  the  second  degree,  only  applies  to  estates  tail.  As  to  the 
The  rule  seems  to  be  laid  down,  as  if  presumption  of  the  illegitimacy  of  chil- 
no  proof  could  be  admitted  to  the  con-  dren,  on  account  of  the  tender  years  of 
trary  of  the  presumption.  It  does  not  the  father,  Rolle's  Abr.  tit.  Bastardy, 
appear,  whether  in  any  case  such   proof  359. 

has  been  tendered.     Medical  experience  (3)  Co.  Litt.  244,  a.     Rex  v.  Alber- 

shews,  that  the    presumption  is    not   al-  ton,  1  Lord  Ray.  395.     Regina  v.  Mur- 

ways  according  to  fact  and  truth.  ry,   1  Salk.    12i. 

(1)  1  Hale,  P.  C.  ch.  3;  1  Russel  on  (4)  See  the  ancient  authorities collec- 
Crimes,  ch.  1.  ted  in  Le  Merchants'  Preface  to  the  Gar- 

(2)  Rex  V.  Owen,  4  C.  &  P.   236.—  diner's  Peerage  case. 
A  boy  between  eight  and  nine  has  been 


Sect.   1.]      Presumptions  by  Courts  arid  Juries. 


419 


cumstances  of  the  case,  that  no  sexual  intercourse  took 
place.  (5)  But  where  a  *jury  helieve  that  sexual  intercourse  [  *463  ] 
took  place  between  husband  and  wife,  and  at  a  time  when  it 
might  have  led  to  the  conception  of  the  child  whose  legitima- 
cy is  disputed,  it  would  seem  that  they  ought  not  to  find  the 
child  a  bastard.  (I)  Children,  born  during  a  divorce  amensa 
et  iho7'o,  are  presumed  to  be  illegitimate.  (2) 

The  fact  of  marriage  is  generally  considered  as  sufficiently  Marriage, 
proved  by  presumptive  evidence  of  cohabitation,  or  even  by 
general  reputation,  (3)  but  in  actions  for  adultery  and  on  in- 
dictment for  bigamy  an  actual  marriage  must  be  proved.  (4) 
Even  where  a  marriage  between  parties  is  proved  to  have 
been  illegal,  it  may  be  competent  for  a  jury  to  presume,  from 
the  circumstances  of  the  case,  where  the  parties  have  cohabit- 
ed as  man  and  wife,  that  a  subsequent  valid  marriage  has  tak- 
en place.  (5) 

There  is  a  general  presumption  in  criminal  matters,  that  a  intention, 
person  intends  whatever  is  the  natural  and  probable  conse- 
quence of  his  own  actions.  Where  a  prosecutor,  on  an  indict- 
ment for  forging  a  receipt  with  intent  to  defraud  him,  swore 
*that  he  believed  the  prisoner  had  no  such  intent,  the  Judge  [  *464  ] 
directed  the  jury,  that  the  defrauding,  being  tiie  necessary  ef- 
fect and  consequence  of  the  forgery,  was  sufficient  evidence  of 
the  intent  of  the  prisoner  to  warrant  them  in  convicting.  (1) 


(5)  Pendrell  v.  Pendrell,  2  Str.  925.— 
Rex  V.  Reading,  Rep.  Temp.  Hard.  82. 
Rex  r.  Luffe,  8  East,  193.  Banbury  ^ 
Gardiner  Peerage  cases,  Le  Merchant's 
Ed.  See  the  Ed.  Rev.  March,  1829, 
where  it  is  contended,  that  the  want  of 
lecognition  on  the  part  of  tlie  husband 
is  essential  to  the  proof  of  illegitimacy. 
Cope  V.  Cope,  1  M.  &  Ro.  275.  Mor- 
ris r.  Davis,  3  C.  <^  P.  215.  Rex  v. 
Luffe.  8  East,  206.  Goodright  v.  Saul, 
4  T.  R.   356. 

(1)  Cope  V.  Cope,  1  M.  &  Ro.  275, 
where  it  is  said  by  Alderson,  H.,  that 
where  a  jury  believes  that  a  husband  and 
wife  have  actually  had  sexual  intercourse 
within  the  requisite  limits  of  time,  the 
law  will  not  allow  a  balance  of  the  evi- 
dence as  to  who  is  most  likely  to  have 
been  the  father.  See  Head  i'.  Head,  I 
Sim.  &  Slu.  152.  1  Turn.  139.  It  may, 
perhaps,  be  thought  that  even  this  point 
will  ultimately  be  reduced  within  the 
province  of  a  jury.  It  has  been  said, 
that  if  a  man  marries  a  woman  visibly 
pregnant,  it  is  a  conclusive  inference  of 
law,  that  the  child  is  Icgilinnlo.  As  to 
the  existence  of  any  presuinpiion  respect- 
ing the  length  of  the  period  of  gestation, 
see  the  evidence  in  the  Gardiner's  Peer- 
age case,  Hargr.   Co.   Lilt.    123,  b.  n.  1 


&  2.  Alsop  V.  Bowtrell,  Cro.  Jac.  541. 
As  to  the  presumption  when  a  widow 
marries  again,  and  has  a  child  within 
nine  months,  Harg.  Co.  Litt.  8  a.  n.  7. 

(2)  Parish  of  St.  George  v.  St.  Mar- 
garet, 1  Salk.  123. 

(3)  Doe  V.  Fleming,  4  Bing.  266, 
though  the  parties  whose  marriage  was 
disputed  might  have  been  called  as  wit- 
nesses in  an  ejectment  brought  by  their 
lieir,  Reed  v.  Prosser,  Peake,  233. 

(4)  Morris  v.  Miller,  5  Burr.  2057. 
Birt  V.  Barlow,  1  Doug.  170.  It  was 
said  by  Lord  Mansfield,  that  the  action 
might  be  turned  to  bad  purposes,  if  per- 
sons could  give  the  name  of  a  wife  to 
women  to  whom  they  were  not  married, 
1  Russell  on  Crimes,  206,  207.  It  is 
not  necessary  to  prove  registration,  li- 
cense, or  banns.  Rex  v.  Alison,  It.  ^  R. 
109. 

(5)  Wilkinson  v.  Payne,  4  T.  R. 
468. 

(1)  The  judges  held  the  conviction  to 
be  right,  Shepherd's  case,  11.  ^-  11.  H>9. 
See  Phelps's  case,  1  ftlo.  Cr.  Ca.  263; 
Maragora'd  case,  R.  fy  11.291;  Earring- 
ton's  ca^e,  R.  iV  It-  207,  where  inten- 
tion to  injure  the  owner  of  a  mill  set 
on  fire  was  presumed.  Dixon's  case,  S 
M.  ^  S.  15. 


420  On  Presumptive  Evidence.  [Ch.  20. 

Malice.  jt  seems  to  be  clearly  a  presumption  of  law,  which  ought 

not  (to  be  left  to  the  discretion  of  the  jury,  that  where  an  act 
is  done  injurious  to  an  individual,  malice  is  prima  facie,  to  be 
presumed  in  the  person  doing  that  act.  Thus  a  new  trial  has 
been  granted,  because  a  Judge  left  it  to  the  jury  to  say, 
whether  a  defendant  intended  to  injure  the  plaintiff  by  the 
publication  of  a  libel,  the  Court  determining  that  the  law 
Av^ould  presume  the, intention.  (2)  (a)  Sir  M.  Forster  observes, 
that,  in  every  charge  of  murder,  the  fact  of  killing  being  first 
proved,  all  the  circumstances  of  accident,  necessity  or  infirmi- 
ty are  to  be  satisfactorily  established  by  the  prisoner,  unless 
they  arise  out  of  the  evidence  produced  against  him  ;  for  the 
law  presumes  the  fact  to  be  founded  in  malice,  unless  the  con- 
trary appears.  (3) 

Innocence,  A  presumptiou  exists  agaiust  Criminality  and  the  commis- 
sion of  fraud.  (4)  Thus,  where  a  plaintiff  complained  that  a 
defendant  had  put  on  board  of  a  vessel  combustibles  which  oc- 
sioned  the  loss  of  the  vessel,  the  Court  held  it  to  be  incum- 
bent on  the  plaintiff  to  prove  the  negative,  that  no  proper  no- 

[  *4G5  ]  tice  *had  been  given,  and  they  confirmed  a  nonsuit  upon  this 
ground.  (1)  The  force  of  this  presumption  has  been  consider- 

(2)  Haire  u.  Wilson,  9  B.  ^  C.  643.  169,  2Q7,  191. 
The  distinction  between   majice  in   fact         (3)  Sjr  M.    J'oster's   Discourses,  256, 

and  in  law.   is   explained   by  Bailey,  J.,  257.      1  Hale's  P.  C.  455.     1  East's  P. 

in  Bromage  v.  Pmsser,  4  B.  ^   C.  253.  C.  340,  3  M.    .S"  S.    15.     R.  ^  R.  Cr. 

In  actions  for  malicitms  prosecution,  mal-  Ca.  169,  207,  291. 
ice  may  be  presumed  from  want  of  prob-         (4)   10   Coke,    56,  the  case   of    the 

able  cause,  Burley  v.  Bethune,  5  Taunt.  Chancellor  v.  the  University  of  Oxford, 

583.     See  Turner  v.  Turner,  Gow,  20.  where  see  the  various  Latin   maxims  by 

Brooks  r.  Warwick,  2  St.  389.     Cozer  which    this   presumption    has    been    ex- 

i>.  Pilling,  4  B.  Sr  C.  26.     But  the  want  pressed. 

of  probable  cause  is  only  presumptive  (1)  Williams  v.  E.I.  Co.  3  East,  192. 
evidence  of  malice,  and  ought  not  to  be  For  other  examples,  see  Rex.  v.  Haw- 
left  to  the  jury  as  conclusive,  Mitchell  v.  kins,  10  East,  211,  presumption  of  tak- 
Jenkins,  5  B.  &  Ad.  588.  On  the  infer-  ing  the  sacrament.  Pvwell  v.  Millbank, 
ence  of  malice  in  criminal  cases,  Foster's  3  VVils.  855;  2  Bl.  851.  Monke  v.  Bui- 
Disc.  256,  257,  3  M.  4-  S.  15.    R.  .V  R.  ler,  1  Roll.  R.    83.     Clayton's  R.  foj. 


(a)  In  an  action  for  a  malicioos  prosecution,  it  oujrht  to  be  left  to  the 
jury  to  find  whether  there  Avas  malice  or  not ;  5  B.  &  Ad.  .588  ;  it  is  essen- 
tial for  a  plaintiff  to  prove  facts  from  which  the  judge  may  decide  that  there 
is  want  of  probable  cause,  and  the  jury  that  there  is  malice.  9  Conn.  309. 
If  a  person  commence  an  action,  by  attaching  tlie  goods  of  the  defendant, 
knowing  that  he  has  no  cause  of  action ;  this  is  malicious  enough.  By 
Daggett,  J.,  id.  See  also  12  Pick.  324.  and  5  Mason,  192,  where  jt  is  laid 
down,  that  whatever  is  done  with  a  wilful  disregard  of  the  rights  of  others, 
whether  it  be  to  compass  some  unlawful  end,  or  some  lawful  end  by  unlaw- 
ful means,  or  to  do  a  wrong  knowing  it  to  be  such,  constitutes  legal  malice. 
See6  Wend.  418. 

In  an  action  of  slander,  defendant  under  the  general  issue  may  .show  that 
he  spoke  the  words  without  intention  to  defame.  15  Mass.  48;  5  J.  R.  180; 
Alderman  v.  French,  1  Pick.  1.  But  the  mere  proof  of  the  words  spoken  is 
sufficient  proof  for  the  plaintiff;  he  is  not  bound  to  prove  that  the  words 
spoken  were  false  or  malicious.     1  Pick.  1. 


Sect.   1.]       Presumptions  hij  Courts  and  Juries.  421 

ed,  in  a  late  case,  not  so  great  as  to  preclude  a  jury,  or  a 
Court  of  duarter  Sessions  from  presuming  the  continuance  of 
human  life,  although  such  presumption  necessarily  led  to  a 
conclusion  that  a  party  had  been  guilty  of  bigamy.  (2)  But 
on  the  other  hand,  the  presumption  that  a  party  has  not  been 
guilty  of  bigamy,  may,  it  has  been  held,  warrant  a  jury  or 
Court  of  Quarter  Sessions  in  concluding  that  a  person  was 
dead,  who  had  been  proved  to  have  been  alive  within  seven 
years.  (3)  {a) 

It  appears  from  the  case  of  Williams  v.  East  India  Com^ 
pantj,  that  the  presumption  under  consideration  may  have  the 
effect  of  shifting  the  onus  prohandi  from  the  person  who  has 
to  prove  the  affirmative  to  him  who  relies  on  the  negative  ;  (4) 
but  it  is  conceived  that  it  will  not  have  this  eftect,  where  the 
affirmative  lies  peculiarly  within  the  knowledge  of  the  party 
supposed  to  be  criminal.  Thus,  in  an  action  for  practising  as 
an  apothecary  without  having  obtained  a  certificate,  the  proof 
of  the  certificate  lies  on  the  defendant.  (5)  The  like  rule  ob- 
tains; in  convictions  against  persons  for  trading  as  hawkers,  or 
selling  without  license.  (6) 

*But  where  a  libel  is  sold  at  a  bookseller's  shop  by  his  ser-  )^"I|'iIpf,''°" 
vant,  it  is,  at  least,  presumptive  evidence  of  a  publication  by  r  *4G6  ] 
the   master  ;    though,  in  general,  an   authority  to  commit  a 
breach  of  the  law  is  not  to  be  presumed.     This  is    stated  to 
be   upon  a  ground  of  policy,  lest  irresponsible   persons  should 
be  put  forward,  and  the  person  who  really  produces  the  pub- 

48,Dr.  Maskers  case,  Comb.  202.  ReK  (4)  3  East,   192,   and  see  B.   N.  P. 

t'.  Coombs,  Comb.   57.     B    N.  P.  298,  298.    Monke  v.  Butler,  1  Roll.  Rep.  8.3, 

Rex  «.  Rogers,   2  Camp.  654.     Bennet  cited  by  Lord  Ellenborough,  3  East,  199. 

».  Clongh,  I  B.    &  A.  461.     Sissons  v.  Powell   i'.    INliibank,    2    Bl.    Rep.    851. 

Dixon,    5    B.    .^  C.   758.     Rodwell   r.  Rex  r.  Coombs,   Comb.    57.     Gilb.  Ev. 

Redge,  1  C.  4-  P.  220,  license  of  a  the-  132. 

aire   presumed.     3  C.h.   Ca.   114;  Cro.  (5)  Apothecaries'   Co.  t).  Bentley.  R. 

Car.  550;  Latch.  68;  and  see  the  cases,  ^  M.  150.  See  4  B.  4^  A.  140;  9  Price, 

where  a  person  acting  in  a  public  capaci-  257;  5  M.  &  S.  211;  1    B.    4"  C.  150; 

ty  is  presumed   to   have  been   duly   ap-  3  B    &   C.    242;   2    East's   P.  C.    782; 

pointed.  Dickson  v.  Evans,  6  T.  R.  57. 

(2)  Rex  v-  Harbonne,  2  A.  4"  E-  (6)  Rex  v.  Hanson,  Paley  on  Con- 
545.  viciions,  by  Dowling,  45;  and  the  cases 

(3)  Rex  V-  Twyning,  2  B.  &  A.  388.  of  qualifications  under  the  repealed  Gamo 
The  general  observations  of  the  Court  Laws,  1  T.  R.  144;  1  East,  650;  2 
as  to  the  force  of  the  presumption  of  in-  Russ.  on  Crimes,  692.  Rex  r.  Turner, 
nocence  in  this  case,  are  impugned  by  5  M.  4"  S.  206.  Rex  i*.  Smith,  3  Burr, 
the  observations  of  the  Court,  in  Rex  v-  1475.  1  B-  &  P.  468;  2  B.  4-  P.  307. 
Harbonne,  2  A.  &  E.  545. 


(a)  Innocence.  Under  an  indictment  for  peddling'  jjoods  contrary  to  the 
statute,  it  is  incumbent  on  the  prosecutor  to  prove  .such  facts  as  constitute 
guilt  according- to  the  statute.  2  Pick.  103.  Advice  given  to  another  to 
commit  suicide,  will  be  presumed  to  have  produced  tlie  effect  intended.  1^ 
Mass.  359. 


422 


On  Presumptive  Evidence. 


[Ch.  20. 


Presiimp- 
lloil  olllioft 
Irom  pos- 
session. 


Contra  spo- 
liatorem. 


[  =*467  ] 


licatioii,  and  without  whom  it  could  not  be  published,  should 
escape.  (1) 

The  most  common  case  of  presumptive  evidence  in  crimi- 
nal proceedings  is  the  presumption  arising  from  the  possession 
of  stolen  property.  Juries  are  frequently  warranted,  by  the 
sanction  if  not  by  the  recommendation  of  Judges,  to  presume 
that  a  person,  who  is  found  in  possession  of  stolen  property 
recently  after  it  has  been  missed,  has  been  guilty  of  stealing 
it.  Sometimes  this  presumption  has  been  spoken  of  as  made 
by  the  law ;  but  it  seems  to  be  presumption  purely  of  fact. 
It  depends  upon  various  circumstances,  especially  on  the  in- 
terval of  time  which  has  elapsed  since  the  loss  of  the  proper- 
ty, and  the  probability  of  the  prisoner  having  had  access  to 
it.  (2) 

Where  a  person  is  proved  to  have  suppressed  any  species  of 
evidence,  or  to  have  defaced  or  destroyed  any  written  instru- 
ment, a  presumption  will  arise,  that  if  the  truth  had  appeared, 
*it  would  have  been  against  his  interest,  and  that  his  conduct 
is  attributable  to  his  knowledge  of  this  circumstance,  (a)  In 
a  case  where  the  finder  of  a  jewel  would  not  produce  it,  upon 
an  action  of  trover  being  brought  against  him  to  recover  it, 
Chief  Justice  Pratt  directed  the  jury,  that  they  ought  to  pre- 
sume the  strongest  against  him,  and  to  make  the  value  of  the 
jewel  of  the  finest  water  that  would  fit  the  socket  of  the  one 
which  had  been  withheld,  the  measure  of  their  damages.  (1) 
In  Harwood  v.  Goodright^  (2)  a  testator  made  a  will,  and  de- 


(1)  Gutch's  case,  M,  Sf  M.  433.  Al- 
mon's  case,  5  Burr.  2698.  Walter's 
case,  3  Esp.  21.  Cuthel's  case.  Holt  on 
Libel,  287;  2  Starkie  on  Slander,  33; 
Dodd's  case,  2  Ses?.  Ca.  33;  1  Russ.  on 
Crimes,  236.  See  Harding  v.  Greening, 
8  Taunt.  42.  Several  aulliorities  appear 
to  decide,  that  the  master  is  responsible 
for  the  publication  by  his  shopman,  in 
the  ordinary  course  of  his  business,  not- 
withstanding he  is  able  to  negative  all 
knowledge  of  the  particular  libel,  by 
showing  that  he  has  been  kept  away 
from  the  premises  for  a  long  time  by  ill- 
ness. 

(2)  See  the  observations  on  this  pre- 
sumption, 2  East's  P.  C.  656,  665;  2 
Hale's  P.  C.  289.  As  to  the  interval 
elapsing  between  the  loss  and  discovery 
of  the  property,  see  Anon,  2  C.  .^  P. 
459.  Roscoe,  on  Cr.  evidence,  17.  It 
may  be  observed,  that  this   presumption 


is  frequently  as  strong  in  favor  of  receiv- 
ing stolen  property,  as  of  stealing  it.  As 
to  the  possession  of  stolen  property  being 
evidence  of  another  felony,  e.  ^.  Arson, 
Rickman's  case,  2  East's  P.  C.  1035. 
That  it  is  not  necessary  that  the  stolen 
property'  should  be  discovered  before  the 
prisoner's  apprehension,  see  per  Lord 
Ellenborough  and  Lord  Tenderden,  in 
Watson's  case,  2  St.  139.  Cases  of  dif- 
ficulty in  practice  frequently  occur,  where 
stolen  property  is  found  in  the  house  of 
a  prisoner,  but  there  are  other  inmates 
capable  of  stealing  it, 

(1)  Armory  v.  Dolamire,  1  Str.  505. 

(2)  Cowp.  86.  For  other  examples 
of  this  presumption,  see  the  case  of  An- 
nesley  v.  Anglesea,  17  Howell,  1430, 
where  the  presumption  arose  from  the 
plaintitT  being  kidnapped  and  sold  for  a 
slave.  Sir  S.  Romilly's  speech  on  Lord 
Melville's  trial,  where  most  of  the  cases 


[a]  It  has  been  said  that  if  an  alteration  appears  upon  the  face  of  a  bill, 
the  party  producincr  it,  must  show  that  the  alteration  was  not  improperly 
made.  .5  Bing.  183.  But  this  is  denied  in  Bailey  v.  Taylor,  Jl  Conn.  R. 
531,  by  Williams,  C.  J.,  who  cites  Taylor  v.  Mosely,  6  C.  &  P.  273. 


Sect.   1.]     Presumptions  by  Courts  and  Juries.  423 

vised  premises  to  A.  ;  afterwards  he  made  another  will,  wliich 
was  lost,  and  which  the  jury  found,  by  a  special  verdict,  to 
be  different  from  the  former  will,  but  they  did  not  find  in 
what  particular  the  difference  consisted :  the  Court  decided, 
that  the  devisee  under  the  first  will  was  entitled  to  the  estate; 
but  Lord  Mansfield  said,  that  in  case  the  devisee  under  the 
first  will  had  destroyed  the  second,  it  would  have  been  a  good 
ground  for  a  jury  to  find  a  revocation. 

The  fabrication  of  evidence  is  calculated  to  raise  a  presumo-  ^*'''"''''«- 

•         i    il  ^11  1  '     .  ^       tioii  of 

tion  agamst  the  party  who  has  recourse  to  such  a  practice,  not  evidence, 
less  than  when  evidence  has  been  suppressed  or  withheld.  Legal 
experience  however,  has  shewn  that  false  evidence  has  some- 
times been  resorted  to,  for  proving  facts  which  are  true.  (3) 
In  the  Douglas  Peerage  case,  the  successful  party  had  to 
contend  with  a  presumption  against  him  arising  from  the  fab- 
rication of  several  letters.  (4) 

It  has  been  considered,  that  upon  a  charge  of  robbery  it  is 
*not  necessary  that  actual  fear  should  be  strictly  proved,  be-  [  *46S  1 
cause,  as  it  is  said,  the  law,  in  odium  spoliatoris,  will  presume 
fear,  where  there  appears  to  have  been  a  just  ground  for  it. 
Accordingly  an  indictment  for  robbery  has  been  sustained, 
where  the  party  robbed  sought  out  the  robber  and  submitted 
to  be  robbed  by  him,  purposely  with  the  view  of  bringing  him 
to  justice.  (1) 

In  general,  there  is  a  presumption  in  favour  of  the  continu-  c'on'inu- 
ance  of  what  is  once    proved    to  have   existed.  (2)      But    in  coiuinu- 
questions  concerning  the  duration  of  human   life,    there  is   a  ance  of  life, 
presumption  which  has  been  much  sanctioned  and  acted  upon 
(if  it  be  n»)t  obligatory  upon  juries),  that  where  a   person  has 
been  absent  abroad  for  seven  years,  he  is  to    be    presumed  to 
be  dead,  (a)     This  period  has  been  adopted  as  the  ground  of 

are  collected.    Cowper  v.  Cowper,  2  P.  ilie  Surgeon,  fabricated  hy  Sir  J.  Stew- 

Wins.    720,   748,    752.      8    Ves.    363.  art. 

Gartside  v.  Ratclifle,   1    Ch.   Ca.   292.         (1)   Fost.  12S,  2  East's  P.  C.  c.  ]6,s. 

Delany  v.  Tenison,    3   Br.    P.    C.    fi59.  128.      1  Russ.  on  Crimes.  72. 
Ualston  J.  Coulsworth,  1   P.  Wms.  731.  (2)   Wilson  v.  Hodges,   2  East,    312. 

Anon.     1  Lord  Raym.  731.      Barker  u.  Throgmorton  i>.  \Valton,  2  Roll.  R.  461, 

Ray,  2  Russ.  73.     Evans's  Pothier,  vol.  \V  here  insanity  is  once  established,  it  is 

2,  p.  336.    Crisp  v.  Anderson,  1  St.  35.  presumed  to  continue  till  a  lucid  interval 

Clunnes  u.  Pezzy,  1   Camp.  8  n.  Braith-  is  proved.     Atty.  Gen.    v.    I'arnther,    3 

waiie   V.    Coleman,    1    Harr.   22;  Burr.  Br.  Ch.  Ca.  25.     Ex  paite,  Holyland, 

2484.     As  to  the  inferences  to  be  drawn  11  Ves.  10.     White  v.  Wilson,  13   Yea. 

from  withholding  booUs,  after   notice   to  88.     Swinb.  72,  78.     Hargr.    Co.    Litt. 

produce.  Cooper  v.    Gibbons,    3  Camp.  n.  185.     White    v.    Driver,    1    Phillirii. 

363.     Lawson  w.  Sherwood,  1    St.  314.  100.     Groom  r.   Thomas,    2    Hagg.     2 

(3)  See  a  remarkable  instance,  4  In-  Ser.  434,  presumption  of  continuance  of 
stitute,  232.  pulilic  appointment.     Rex   v.    Budd,    5 

(4)  See  Appendix  to  Evan's  Pothier,  Esp.  230. 
respecting  the   four   letters  of  Lamarre, 


(a)  See  the  case  of  Jackson  v.  Etz,  S.Cowen,  314.     1.5  .1.  R.  228.     An  ab- 
sence for  a  shorter  period  than  seven  years,  is  not  sufficient  to  raise  a  pre- 


424 


On  Presumptive  Evidence. 


[Ch.  20. 


[  *409 

Of  surviv 


Missing' 
ships. 


such  presumption,  from  analogy  to  the  statute  1  Jac.  1,  c.  11, 
relating  to  bigamy,  and  to  the  statute  19  Car.  2,  c.  6,  relating 
to  the  continuance  or  lives  on  which  leases  are  held.  (3)  But 
the  fact  of  absence  for  seven  years  raises  no  inference  as  to 
the  exact  time  of  the  death,  or  that  the  death  took-  place  at 
the  end  of  seven  years;  (4) 
]  *iiy  the  civil  law  and  in  foreign  codes  several  rules  are  laid 
down  for  the  direction  of  Courts,  in  ascertaining  the  fact  of 
survivorsliip,  where  several  persons  have  perished  by  the 
same  calamity.  No-  very  definite  rule  has  been  adopted  in 
this  country  upon  the  subject  ;  but  there  appears  to  have 
been  a  leaning  to  consider  the  person  possessed  of  the  proper- 
ty in  dispute  to  have  surviv'ed,  and  some  regard  appears  to 
have  been  paid  to  the  probability  of  the  survival  of  the  strong- 
er party.  (1) 

With  respect  to  the  presumption  of  the  loss  of  missing  ships, 


(3)  In  Doe  d.  George  v.  Jes!<nn,  6 
East,  85,  the  presumption  is  spoken  of 
!is  a  rale,  of  lavv.  Doe  d.  Lloyd  u.  Det- 
liin,  4  15.  &  A.  433.  Rowe  v.  Husland, 
1  W.  Bl.  405,  at  the  period  of  which 
decision  the  presumption  does  not  appear 
to  have  been  so  definite  as  to  time. 
Hopewell  «.  De  Penna,  2  Camp.  113,- 
where,  in  a  plea  of  coverture,  the  defen- 
dant was  held  to  be  bound  to  pro-ve  her 
husband  alive  within  seven  years.  In 
Rex  J).  Harbonne,  2  A.  &  E.  544,  Lord 
Denman,  Ch.  J.,  said  that  there  was 
no  rigid  rule  of  presumption  upon  such 
questions  of  fact,  without  reference  to 
accompanying  circumstances,  as,  for  in- 
stance, the  age  or  health  of  the  party. — 
Death,  without  issue,  may  be  presumed, 
where  marriage  and  issue  are  two  affir- 
mative facts  to  be  proved.  Doe  d.  Old- 
ham V.  Wooley,  S  B.  .J-  C.  22.  See 
Doe  V.  Gritiin,  15  East,  293.  Rowe  v. 
Hasland,  1  W.  Bli  404.  The  presump- 
tion of  death,  from  absence  of  seven 
years,  was  formed  previous  to  the  stat- 
ute of  bigamy,  in  Thorne  y.  Rolffe,  Dy- 
er 185.     Bendl.  86. 


(4)  Doe  d.  Knight  v.  Nepean,  2  A. 
4*  E.  95,  where  the  lessor  oi'  the  plain- 
titi'  sought  lb  place  the  period  of  death 
at  the  end  of  seven  years,  in  order  to 
avoid  an  adverse  possession.  Watson  t). 
King,  1  St.  121,  where  it  was  held, 
that  the  time  of  death  of  a  person,  sail- 
ing on  board  a  missing  ship,  was  to  be 
judged  of  according  to  the  special  cir- 
cumstances. ISorris  v.  Norris,  Rep. 
tem.  Finch,  419.  Dixon  v.  Dixon,  3 
Br.  Ch.  Ca.  510;  and  Mr.   Belt's  notes. 

(1)  Taylor  t).  Duplock,  2  Phillimore, 
263.  Colven  v.  H.  M.  Procurator  Gen. 
2  Ser.  Hagg.  vol.  1,  p.  92.  Rex  v.  Dr. 
Hay,  1  W.  Bl.  640.  Case  of  General 
Stanwix,  Fearne's  posthumous  works. 
In  the  goods  of  Selwyn,  3  Hagg.  Ecc. 
R.  748.  IMason  t.  Afason,  1  Mer.  308, 
n.  Broughton  v.  Randall,  Cro.  Eliz.  503. 
Case  of  Father  and  Son,  joint-tenants, 
hanged  in  the  same  cart,  the  wife  of  the 
son  claiming  dower.  Wright  v.  Nether- 
wood,  2  Salk.  593,  n.,  question  of  revo- 
cation of  a  Will,  a  father,  wife,  and  child 
dying  by  shipwreck.  The  French  Code, 
Liv.  3,  tit.  1,  ch.  1. 


sumption  of  the  death  of  a  person.  10  Pick.  .516.  "Whether  a  man  was 
alive,  or  not,  at  a  certain  time,  is  a  fact,  which  the  jury  must  decide,  and  yet, 
if  under  certain  circumstances,  the  probability  of  death  is  g^reat,  it  may  be 
said,  that  the  jury  oug-ht  to  presume  the  death  without  positive  proof."  By 
Tilghman,  C.  J.  3  S.  &  R.  4!t0.  "I  am  not  for  fixinfr,  any  precise  period 
after  which  a  presumption  of  death  arises.  But  I  think  myself  safe  in  say- 
ing', that  in  the  present  instance,  considering  that  14  years  and  9  montiis 
have  elapsed,  between  S's.  being  last  heard  of,  and  the  commencement  of 
this  action  ;  that  when  last  heard  of,  he  was  at  a  place  between  whicli  and 
the  city  of  Philadelphia  there  was  a  free  communication,  and  it  was  then 
his  intent  to  return  soon  to  P. ;  his  being  now  in  life  would  be  contrary  to 
the  usual  course  of  things,"  and  the  court  should  so  direct  the  jury.  id. 


Sect.   1]       Presumptions  ty  Cotirt^  and  Juries.  425 

a  practice  is  said  to  prevail  among  underwriters,  that  a  ship 
shall  be  deemed  lost,  if  not  h6ard  of  for  six  months  after  her 
departure  for  any  part  of  Europe,  or  in  twelve  months  after 
departure  for  any  greater  distance.  (2)  (a) 

It  has  been  seen,  that  it  is  a  rule  that  all  public  officers,  who  ''"M"^  *P- 

11  1  I  111  pointmeiit. 

are  proved  to  have  acted  as  sucli,  arc  presumed  to  have  been 
duly  appointed  to  the  office,  until  the  contrary  is  shewn,  and 
that  the  force  of  this  presumption  is  so  strong  as  to  supersede 
the  rule  which  excludes  secondary  evidence.  (3) 

Where  acts  are  of  an  official  nature,or  require  the  concurrence  J^/,f,^",'j^^t-a 
*of  official  persons,  a  presumption  arises  in  favour  of  their  due  'Ueaeta. 
execution  ;  it  has  been  said  on  such  occasions  "  Omina  prce-  [  *470  J 
sumuntur  7'ite  acta."    ThUs,  in  order  to  support  a  parish  cer- 
tificate, a  custom  was   presumed  contrary  to     the   common 
law,  of  the  parish  having  only  one  churchwarden,  and  it  was 
also  presumed  that  a  party  to  the  instrument  had  died  within 
a  very  short  period,  on  the    ground  that  the    certificates   had 
been  sanctioned  by  justices.  (1)  (b) 

This  presumption  has  been   extended  to  the  acts  of  private 

(2)  Park  on  Ins.  106,  107,  2  Str.  against  justices  and  constables,  is  not  a 
1199.  Patterson  v.  Black,  Park  on  Ins.  good  one,  because  there  the  doctrine  of 
433.  Newly  v.  Reed,  Park,  63.  Green  admissions  applies.  Doubts  have  been 
V.  Brown,  2  Sir.  1199.  Cohen  v.  Hink-  entertained,  whether  the  rule  prevails, 
ley,  2  Camp.  51.  Kostu  v.  Innes,  R.  4"  where  an  ejectment  is  brought  in  the 
M.  333.  Twemlow  u.  Oswin,  2Camp.  name  of  the  parish  officers.  Cases  of 
85.  Houstman  u.  Thornton,  Holt,  242.  this  description  rest  in  some  measure  up- 
Kostu  V.  Reed,  6  B.  k.  C.  19.  Walson  on  the  presumption,  that  a  party  had  not 
V.  King,  1  St.  121.  committed  an  unlawful  act. 

(3)  Vide  supra.  Secondary  Evi-  (1)  Rex  v.  Catesby,  2  B.  ^'  C.  820; 
dftice.  M'Gahey  v.  Alston,  2  M.  &  and  see  Rex  v.  Morris,  4  T.  R.  550. 
Wei.  211.  The  action  was  brought  in  Rex  t).  Hinckley,  12  East,  361.  Rex 
the  name  of  the  public  officer,  but  he  it.  Bestland,  1  Wils.  128.  Rex  v.  Long 
was  only  a  nominal  party.  It  was  said,  Buckby,  7  East,  45,  where  an  indenture 
generally,  that  it  was  quite  immaterial  executed  thirty  years  before,  was  pre- 
liiat  the  action  was  brought  in  the  name  sumed  to  be  stamped  against  strong  neg- 
of  the  officer  ;  but  the  reason    assigned,  ative  evidence. 

that  such    proof  was    allowed  in  actions 


(a)  See  Brown  v.  Neilson,  1  Caines  R.  525. 

[b]  Where  no  abuse  is  shown,  the  law  presumes  that  a  pOblic  officer  does 
his  duty.     9  Cowen,  110  ;  14  Mass.  145—148. 

In  Brown  r.  Wood,  17  Mass.  72,  a  will  20  years  ohl  appeared  to  he  proved 
without  producincr  or  accountin<?  for  tire  absence  of  the  third  subscribin;^ 
witness,  and  without  a  record  of  any  notice  jjivcn  to  the  heirs ;  and  tiie  court 
held,  that  they  were  bound  to  presume  in  favor  of  the  ren-ularity  of  tlie  pro- 
ceedinjTs.  In  Hternbcrjr  v.  Hhaffer,  II  J.  R.  51.'5,  where  the  (jiiestion  was  as 
to  the  validity  of  a  slieritrs  deed  •,  it  was  contended  that  the  dfod  was  inval- 
id because  a  previous  levy  had  not  been  shown,  but  the  court  said  "if  it 
were  necessary,  the  court  under  the  circumstances  of  this  case,  would  pre- 
sume it  to  have  been  made. 

See  also  as  to  the  presumption  of  the  regularity  of  a  licen.«n  jrranted  by 
the  court  of  sessions  to  an  innkeeper;  'i  I'lck.  281.  But  where  the  records 
of  a  court  appear  to  be  perfect,  no  presumption  is  to  be  made  of  any  pro- 
ceediner  not  appearing  on  IJie  record,  even  after  the  laps*  of  30  years.  5 
Pick.  4'JO. 

54 


426  On  Presumptive  Evidence.  [Ch.  20. 

individuals,  especially  when  they  are  of  a  formal  character, 
as  writings  under  seal.  Thus,  in  Doe  d.  Griffin  v.  Mason  (2) 
in  an  action  in  which  the  plaintiffs  title  was  founded  on  the 
assignment  of  a  term  to  secure  an  annuity,  it  was  objected 
that  there  was  no  proof  of  the  annuity  being  enrolled  ;  but 
Lord  Ellenborough  held,  that  proof  of  the  want  of  enrolment 
should  come  from  the  other  side,  and  that  he  would  presume 
the  security  to  be  valid,  till  the  contrary  was  shewn.  Where 
there  was  proof  that  a  party  had  signed  a  deed  which  purpor- 
ted to  have  been  sealed  and  delivered,  it  was  held,  that  the 
Judge  at  Nisi  Prius  had  not  done  wrong  in  leaving  it  to  the 
jury  to  infer,  that  the  deed  had  been  sealed  and  deliver- 
ed. (3)  (a) 
[  *471  ]  *But  it  is  a  rule,  that  in  inferior  Courts  and  judicial  proceed- 
ings by  magistrates,  the  maxim  ^'' Omnia  prmsumuntur  rite 
esse  acta,^^  does  not  apply  so  as  to  give   jurisdiction  ;  (1)  (b) 

(2)  3  Camp.  7.  Cm.  Jac.  456.  Sanction  of  right  of 
(.3)  Talbot  w.  Hodson,  7  Taunt.  251.  presentation  to  a  chapel  of  ease,  2 
The  illustrations  of  this  presumption  are  Eden,  360;  Ambl.  528,  4  B.  &  C.  455. 
very  numerous.  For  example,  M'Queen  Confirmation  of  modus,  2  P.  Wma.  573. 
V.  Farquhar,  11  Ves.  467.  Necessary  Composition  real,  2  Anstr.  372.  Con- 
priority  of  conveyances  of  the  same  sent  to  inclosure,  1  Vern.  32;  5  Vin.  Ab. 
date,  Harker  V.   Keate,    1    Freem.    251;  8   pi.    32.     Performance    of    condition, 

1  Burr.  106;  2  Co.  75,  a.  Sheets  of  a  Grimes  v.  Smith,  12  Co.  4.  Repnbli- 
Will  present  in  a  room.  Bond  v.  Seawel,  cation  of  Will,  8  Ves.  129.  Induction, 
3  Burr.  1773;  1  Bl.  407.  Subscription  Chapman  v.  Beard,  3  Anstr.  342.  Enroll- 
in  testator's  presence,  Hands  v.  James,  ment  of  charitable  use,  3  B  ^  A.  152. 
Com.  531.  Brice  u.  Smith,  Willes,  1.  Surrender  of  copyhold,  1  J.  4- W.  620. 
Croft  r.  Pawlet,  2  Str.  1109,  Cro.  Eliz.  10  East,  409.  Copyhold  admittance, 
401.  Bac.  Ab.  Ev.  2  Saund.  42.  An-  Blunt  r.  Clarke,  2  Sid.  61.  Froswell  u. 
cient  certificates.  Rex  v.  Upton  Gray,  Welsh,  Roll.  Ab.  505;  3  Bulstr,  214, 
lOB.  ,^C.  807.  Rest  v.  Hobson,  1  217,239;  Godb.  269;  Cro.  Jac.  403. 
Sim.  <^  Str.  543.  Interlineations  before  Watkins  on  Copyholds,  269,  n.  7  East, 
sealing,  Trowell  v.  Castle,  1  Keb.  22. —  21;  Dyer,  292,  a.  from  the  Lord's  ac- 
Hargr.  Co.  Litt.  225,  b.  n.  1.  Glanville  ceptance;  Cookes  r.  Hellier,  1  Ves.  234, 
r.  Paine,  Barn.  19.  Fitzgerald  v.  Fau-  from  the  Lord's  enfranchisement, 
conberg,  Fitzg.  204.  Consecration  of  (1)  Per  Holroyd  J.,  7  B.  &  C.  790. 
Chapel,  2  Hagg.  2  Ser.  50.  As  to  this  Rex  v.  Helling,  1  Str.  7,  overruling  Re- 
presumption,  in  cases  of  judgment  by  gina  i'.  Gouche,  2  Salk.  441.  Rex  r. 
default.    Doe  v.   Lewis,    1   Burr.    614.  Hulcot,  6  T.  R.  583. 

Confirmation    of  couveyance    of  glebe, 

(a)  When  a  person  is  required  to  do  a  certain  act,  the  omission  of  which 
would  make  him  guilty  of  a  culpable  neglect  of  duty,  it  ought  to  be  intend- 
ed that  he  has  duly  performed  it,  unless  the  contrary  is  shown.  Hartwell  v. 
Root,  19  J.  R.  345. 

A  jury  may  presume  from  slight  circumstances,  that  a  proprietary  meeting 
was  duly  convened,  when  the  intervening  lapse  of  time  has  been  20  years  ; 

2  N.  H.  R.  310;  especially  where  the  only  person  likely  to  know  of  the 
posting  of  the  advertisements  is  dead.  15  J.  R.  89 ;  3  Mass.  397;  14  id. 
178. 

(6)  The  doctrine  of  intendment  and  presumption,  as  applicable  to  tribu- 
nals and  officers  of  general  and  common  law  jurisdictions,  cannot,  and  ought 
not  to  be  extended  to  persons  and  tribunals  exercising  a  special,  limited  or 
mere  statutory  authority.    4  Hals.  17  ;  7  id.  186 ;  1  Green's  R.  308. 

Justices  of  the  peace  are  presumed  to  have  acted  within  their  jurisdiction, 
until  the  contrary  is  proved.    tJ  Mon.  R.  43. 


Sect.   l.J      Presumptions  hy  Courts  and  Juries.  427 

therefore,  where  an  examination  of  a  soldier,  taken  before  two 
magistrates,  was  tendered  to  prove  his  settlement,  but  it  did 
not  appear  by  the  examination  itself,  or  by  other  proof,  that 
the  soldier,  at  the  time  he  was  examined,  was  quartered  in 
the  place  where  the  justices  had  jurisdiction,  it  was  held  that 
such  an  examination  was  not  receivable  in  evidence.  (2) 

Presumptions  are  frequently  made  from  the  regular   course  ^""'i''®  ".*" 
of  a  pubhc  office.     Thus,   where  it  was  proved  that  the  cus- fice.'^° 
tom-house  would  not  permit  an  entry  to  be  made,  unless  there 
had  been  an  indorsement  made  upon  a  license,    it  was   held, 
after  proof  that  the  license  had  been  lost,  that  the  indorsement 
might  be  presumed  from  the  entry,  (3)      If  a  letter  is  sent  by 
the  post,  there  is  a  prima  facie  presumption,  from   the    usual 
course  of  a  department  of  the  public  service,  that   it  reached 
it's  destination,  till  the  contrary  is  proved.  (4)    (a)    And  pre- Pf'^'ate  of- 
sumptions  are  frequently  drawn  from  the  usual  course  of  pri-   '^^ 
vate  offices,  that  letters  have  been  sent  by  the  post  or  notices 
delivered,  where  the  persons  are  dead,  who  alone   could  give 
direct  evidence  of  the  fact.  (5) 

^Several  presumptions  are  made  in  favour  of  a  person   who  ^°^^7r> 
is  in  possession  of  property.     A  person  in  possession  of  land,  r"*472  ] 

(2)  Bex  V.  All  Saints,  Southampton,  memorandum  of  the  service,  which  was 
7  B.  Sf  C  789.  admissible,  according  to  a  recognised  ex 

(3)  Butler  v.  Alnutt,  1  St.  222.  ception  to  the  rule  which  excludes  hear- 

(4)  Per  Parke  B.,  in  Warren  i>.  War-  say  evidence.  As  to  the  effect  of  the 
ren,  i  Cr.  M.  i^  R.  252.  Proof  of  no-  course  of  business  in  proving  that  letters 
tice  of  dishonor,  by  putting  letter  into  have  been  sent  by  the  post,  where  the 
the  post,  R.  &  M.  149;  2  Campb.  633;  clerks  of  an  otfice  are  dead,  Prilt  r.  Fair- 
9  East,  347.  Post  marks  are  evidence  clough,  3  Camp.  305.  Hagedorn  v. 
that  the  letters  were  in  the  office  at  the  Reid,  3  Camp.  377.  Toosey  r.  VVil- 
times  which  the  dates  specify,  R.  8f  R.  liams,  ftl.  8c  M.  129.  As  to  the  effect  of 
264;  3  St.  64;  2  Camp.  23;'l  M.  &  M.  the  like  course  of  business,  where  the 
276.      Vide  infra,  part  2.  clerks  are  living,  Hethoringlon  v.  Kemp 

(5)  Doe  d.  Pattershail  v.  Turford,  3  4  Camp.  193.  Hawkes  v.  Salter,  4 
B.  &.    Ad.  895,   service   of  a  notice   to  Bing.    715. 

quit.     The  deceased  person  liad  made  a 


(a)  Munn  r.  Baldwin,  6  Mass.  316.  If  it  was  agreed  that  the  letter  mis- 
carried, and  that  the  defendants  did  not  receive  it,  it  rnijrht  be  a  question 
at  whose  risk  the  letter  was  sent  by  the  mail;  and  wlicther  the  regular 
mail  being  the  usual  method  of  conveyance  for  notices  of  protest  of  bills, 
&c.,  the  defendants  must  not  be  answerable  for  the  miscarriage  in  the  same 
manner  as  if  a  letter  sent  by  their  private  servant  had  not  been  delivered  by 
him.  See  Miller  v.  Hacklcy,  5  J.  R.  .'37.'),  where  the  notary  testified  that  he 
did  not  recollect  positively  as  to  sending  the  notice  in  the  present  case,  but 
said  it  was  his  usual  practice,  as  notary,  on  the  evening  of  the  day  of  the 
protest,  and  in  all  cases  of  protest,  to  give  notice  in  writing,  to  the  endorsers 
at  a  distance,  by  putting  the  notice  in  the  post-office,  directed  to  the  party, 
at  his  place  of  residence.     Held,  sufficient. 

(i)  Property  in  (roods.  In  Ireland  v.  Higgins,  Cro.  Eliz.  125,  a  plainti/T 
recovered  in  trover  for  a  grcy-jiound. 

The  naked  possession  of  a  personal  chattel  is  prima  facie  evidence  of 
property,  and  good  against  all  but  the  rightful  owner.  But  a  person  claim- 
ing title  under  a  sheriff's  sale,  must  show  the  execution  by  virtue  of  whicU 


428  On  Presumptive  Evidence.  [Ch.  20. 

is  jon'ma/aae  presumed  to  be  seised  in  fee.  (1)  This  pre- 
sumption, however,  maybe  rebutted  by  a  stronger  presump- 
tion, arising  from  circumstances,  as  from  subsequent  posses- 
sion ;  it  is  not  conchisiv^c  evidence  of  a  seisin  requiring  to  be 
divested  by  deeds.  (2)  Possession  of  personal  property  affords 
a  j&n??ja/ade  presumption  of  o\vnership.  Thus,  although  a 
docum/entary  title  is  essential  to  the  ownership  of  ships,  it  is 
sufficient,  in  an  action  upon  a  policy,  for  the  plaintiff  to  rest 
upon  the  mere  fact  of  possession,  unless  further  proof  be  ren- 
dered necessary  by  contrary  evidence  being  adduced.  (3)  («) 

(1)  ric?e  the  cases,  supra  of  decla-  (3)  Robertson  o.  French,  4  East,  130, 
rations  against  interest  by  persons  in  pos-  See  also  Trotter  v.  Harris,  2  Y.  &  J.  285, 
session  of  property,  which  depend  on  possesion  of  tlie  franchise  of  a  ferry, 
presumption.  Uoev.  Dyebali,  M.  Sf  M.  346.     Doe  v. 

(2)  Jayne  V.  Price,  5  Taunt.  326,  as  Clarke,  7  Bing.  346,  possession  of 
to  presumptive  right  to  minerals.  Rowe  title  in  ejectment  against  a  wrong 
«,  Grenfel,  R.  ^  M.  396;Rowe  r.  Dren-  doer.  Further  on,  presumptions  from 
Ion,  8  B.  4"  C.  737,  of  quit  rent.  Doe  possession,  Sutton  v.  Buck,  2  Taunt. 
V.  Johnson,  Gow,  173,  of  property  in  302.  Thomas  v.  Foyle,  5  Esp.  88. 
rriines.  B.  N.  P.  33;  as  to  rebutting  Catteris  v.  Cowper,  4  Taunt.  547. — 
the  presumption  arising  from  possession,  Graham  r.  Peat,  1  East,  244.  Sheriff 
by  shewing  that  an  ancestor  has  not  con-  v.  Cadell,  2  Esp.  617.  Webb  v.  Fox, 
veyed  by  true  recovery,  Doe  v.  Pike,  3  7  T.  R.  397.  1  B.  ^  P.  44 ;  1  St.  374, 
p.  &  Ad.  738.  454;  3  Esp.  140,  278;Peake,  148. 


the  property  was  sold.  Vance  v.  Reardon,  2  N.  &  M'Cord,  299.  But  the 
sale  may  be  proved  by  parol  evidence.  Evans  v.  Rosters,  ib.  563.  The 
reason  is,  that  the  return  is  not  essential  to  the  title  of  the  purchaser;  and 
the  sale  will  be  valid,  although  the  execution  shall  never  be  returned,  ib.  1 
J.  Cas,  155  ;  Simonds  v.  Catlin,  2  Caines  R.  63. 

The  property  of  a  building  erected  on  the  land  of  another  by  the  consent 
of  the  owner  of  the  land  is  personal  property.  Wells  v.  Banister,  4  Mass. 
514  ;  consequently,  trover  lies  against  a  defendant  on  his  conversion  of  the 
building.  Osgood  v.  Howard,  6  Greenl.  452;  Russell  v.  Richards,  1  Fairf. 
429.  And  this  against  a  purchaser  of  the  land,  although  the  latter  pur- 
chased of  the  vendor  who  made  no  reservation  of  the  building  in  the  deed 
of  conveyance.  Hilborne  v.  Brown,  3  Fairf.  162.  And  a  purchaser  under 
a  sheriff's  sale  of  such  building,  may  maintain  trover  against  one  who  has 
fraudulently  purchased  the  property,  although  there  was  a  conversion  by  the 
defendant  before  the  plaintiff  became  the  purchaser,  under  tlie  execution. 
Jewett  V.  Partridge,  3  Fairf  243, 

The  owner  of  a  swarm  of  bees  retains  his  property  in  the  same  so  long 
as  he  may  be  able  to  distinguish  and  identify  it  in  the  air;  and  it  equally 
belono-s  to  him  if  it  settles  upon  a  branch  or  in  the  trunk  of  a  tree,  while  it 
remains  there  under  his  observation  and  charge.  If  a  stranger  cuts  the  tree 
and  carries  away  the  honey,  he  may  maintain  trespass,  although  the  tree  is 
standing  upon  the  soil  of  another.     13  Wend.  550. 

The  growing  fleece  of  sheep,  and  the  crop  of  grain  or  fruit  of  the  soil, 
are  the  subjects  of  sale.  So,  the  owner  of  aninjals  may  contract  for  the 
sale  of  the  increase  thereof,  when  parturition  from  the  mother  takes 
place.  5  Yerg.  R.  195.  The  vendor  of  property,  however,  cannot  commu- 
nicate a  riwht  to  property  which  he  has  not,  and  which  he  has  no  reasonable 
expectation  of  receiving  by  prior  contract  or  consignment,  but  only  means 
to  go  into  the  market  and  obtain  it.     Ry.  &  Mo.  386  ;  2  K.  C.  468. 

(a)  A  bill  of  sale  or  other  instrument  under  seal,  is  not  essential  to  the 
.transfer  of  a  ship,  more  than  of  any  other  chattel.    Taggard  v.  Lofing,  J6 


Sect.  1.]     Presnm'ptions  by  Courts  and  Juries.  429 

There  are  ceYta-in  prima  facie  presumptions  in  respect  of  ^°""^'^'''^*- 
the  ownership  of  property,  which  seem  to  have  the  force  of 
rules  of  law,  though  a  jury  must  draw  the  conclusion  which 
is  derived  from  them.  Thus,  the  ownership  of  a  road,  ad  me- 
dium filum  vicB,  presumptively  belongs  to  the  owner  of  the  ad- 
jacent lands  ;  (4)  and  there  is  the  like  presumption  in  respect 
of  the  property  in  rivers.  (5)  It  is  a  presumption  that  strips 
of  waste  land,  which  adjoin  a  road,  belong  to  the  owner  of 
the  adjoining  inclosed  land,  whether  he  be  a  freeholder  or 
copyholder,  and  not  to  the  Lord  of  the  *Manor,  unless  the  [  *473  ] 
strips  communicate  with  open  commons,  or  larger  portions  of 
land.  (1)  In  speaking  of  the  latter  presumption,  Mr.  Justice 
Bayley  says,  it  is  very  desirable,  that  there  should  be  one  cer- 
tain and  definite  rule  applicable  to  all  cases  of  this  descrip- 
tion ;  (2)  and  Mr.  Justice  Holroyd  remarks,  that  it  was  of  con- 
siderable importance,  that  the  prima  facie  presumption  should 
be  constant  and  uniform.  (3) 

By  the  prescription  act,  2  and  3  W.  4,   c.  71,  various  pre-  inforpo- 
sumptions,  which  juries  had  been  ordinarily  recommended,  if  ^^^  "° 
not  directed,  to  make  from  modern  user,  as  to  the  existence  of 
immemorial  rights,  or  of  modern  rights  founded  on  supposed 
non-existing  grants,  have  been  converted  into  positive  rules  of 

(4)  Berry  &  Goodman's  case,  2   Le-     304. 

on.  14S.     Per  Gibbs,  Ch.   J.,   in  Grose  (3)  Ibid.     Presumptive  ownership  of 

V.  West,  7  Taunt.  40.     See  Headlam  v.  walls.     Duke  of  Newcastle,  v.  Clark,  8 

Headley,  Holt,  N.  P.  463.  Taunt.  613.     Wiltshire  v.  Sidford,  cited 

(5)  Hale  de  Jure  Maris,  part  1,  ch.  1,  8  B.  ^  C.  259.     Matts  v.   Hawkins,   5 
Callis   on  Sewers.  Taunt.  20.     Callis  on  Sewer.^,  p.    74. — 

(1)  Doe  d.  Pring  r.  Pearsay,7  B.  &  Of  trees.  Masters  v.  Poll  is,  2  Roll.  R. 
C.  304.  Steel  v.  Prickett,  2  St.  C.  463.  141.  Holder  v.  Cotes,  1  M.  &  M.  112. 
Grose  v.  V\  est,  7  Taunt.  40.  Cook  v.  Waterman  r.  Soper,  1  Lord  Raym.  737- 
Green,  11  Pr.  736.  The  presumption  2  Roll.  R.  255;  B.  N.  P.  85,  of  mate- 
has  a  reasonable  foundation,  since,  if  the  rials  of  public  bridge.  Hamson  v.  Par- 
road  was  out  of  repair,  travellers  might  ker,  6  East,  154,  of  soil  in  separate  fish- 
go  upon  the  adjacent  land,  which  would  ery.  Lloft,  364,  of  ditches.  Vowies 
be  a  reason  for  the  owner  not  inclosing  v.  Miller,  3  Taunt.  138.  Guy  v.  West, 
up  to  the  margin  of  the  road.  It  ap-  2  Sewl.  N.  P.  1218;  of  balks  between 
pears  not  to  exist  where  the  road  is  de-  commons  and  private  lands.  Bailiff's 
fined  for  the  first  time  under  an  inclosure  of  Godmanchester  v.  Phillips  4  A.  &  E. 
act.  Rex  v.  Hatfield,  4  A.  &  E.  165.  556. 

(2J  In  Doe  t;.    Pearsay,  7  B.    ^   C. 


Mass.  340.  Such  a  document  may  be  required  in  the  admiralty  courts ;  but 
the  principle  has  not  been  introduced  in  the  common  law.     8  Pick.  80. 

It  is  well  settled  that  tlie  registry  of  a  vessel  does  not  determine  the  own- 
ership. 2  Hall  1.  The  object  of  the  registry  at  the  custom-house  is  merely 
to  show  her  national  character,  id.;  14  J.  R.  201  ;  15  id.  302.  A  party  is 
not  concluded  by  the  registry.  And  where  a  mortgagee  of  a  vessel  declared 
himself  the  legal  owner,  for  the  purpose  of  the  registry  acts,  held,  that  this 
did  not  in  any  manner  alter  the  relations  existing  between  him  and  the 
mortgagor.  1  Mason,  318 ;  2  Hall,  1.  See  also  the  case  of  Wait  v.  Gibbs, 
4  Pick.  298. 

The  presumption  of  law  is,  that  the  consignee  is  the  owner  of  the  proper- 
ty.   15  Wend.  474. 


430  On  Presumptive  Evidence.  [Ch.  20. 

law.  Previous  to  this  act,  a  technical  effect  was  given  to  the 
evidence  of  enjoyment  of  certain  incorporeal  rights  for  the  pe- 
riod of  twenty  years,  which,  though,  in  theory,  only  presump- 
tive evidence,  was  in  practice  and  effect  a  bar.  (4)  (a) 

Public  way.  With  respect  to  the  presumed  creation  of  rights  of  way,  it 
is  to  be  observed,  that  notwithstanding  the  statute,  the  dedica- 
tion of  public  ways  is  still  a  matter  to  be  presumed  by  juries  ; 
and  in  making  a  presumption  in  such  cases,  numerous  cir- 
cumstances require  to   be  taken  into  consideration^  the  effect 

[  *474  J  of  *which  has,  in  different  instances,  been  more  or  less  clear- 
ly defined  by  legal  authorities.  (1)  (i) 

With  respect  to  the  presumption  of  incorporeal  rights  from 
user  not  included  within  the  statute,  many  presumptions  may 
continue  to  be  formed  by  juries,  and  will,  it  is  conceived,  be 
recommended  to  them  in  deference  to  legal  authority,  and  in 
consonance  with    the   justice  of  a  case,  though  contrary  to 

(4)  Per  Parke,  B.,  in  Bright  v.  Walk-  Trustees  of  Rugby   Charity   v.   Merry- 

er,  1  Cr.    M.    4- 11.   217.     The   statute  weather,  11  East,  376,  n.     2  M.    &  S. 

does  not  prevent  a  jury    from  presuming  262;  4  Camp.  189.     As  to  the  effect  of 

a  grant  from  possession    with    other  cir-  a  bar,  Roberts  r.  Karr,  2  Camp.  262,  n. 

cumstances,   if  they  believe  one  to  have  Lethbridge  v.  Winter,  1  Camp.  263,  n. 

been  actually  made;  but  it  precludes  the  II  East,  376,  n.     As  to  limited  dedica- 

presumption  from  possession  alone  for  a  tions,  Maiq.  of  Stafford    v.    Coyney,  7 

less    period    of  of  enjoyment   than  that  B.  8f  C.  257.     Woodyer  v.   Haddon,   5 

prescribed.     Ibid.  Taunt.  125.     As  to  the  persons,  wheth- 

(1)  The  limit  of  time  is  not  clearly  er  tenants  or  trustees  competent  to  dedi- 
defined,  and  the  question  is  generally  af-  cate.  Rex  v.  Leake,  5  B.  &  Ad.  469. 
fected  by  other  stronger  circumstances.  Wood  v.  Veal,  5  B.  4"  Ad.  454.  Rex. 
than  mere  lapse  of  time.  See  Rex  v.  «.  Barr,  4  Camp.  16.  Harper  w  Charles- 
Lloyd,  1  Camp.  262.  Trustees  of  Brit-  worth,  4  B.  &  C.  574.  2  B.  &  C.  686; 
ish  Museum  v.  Furnis,  5,  C.  4*    P.  460,  11  East,  372;  4  B.  ^  A.  579. 


(a)  With  respect  to  easements  and  incorporeal  rights,  the  rule  is,  that  from 
long  adverse  enjoyment,  a  grant,  or  whatever  else  is  necessary  to  legalize 
the  enjoyment,  and  to  establish  a  title  to  it,  may  be  presumed.  By  Gould, 
J.,  2  Conn.  628. 

Twenty  years  occupation  of  land  by  flowing*  it  under  a  elaim  of  right, 
affords  a  presumption  of  a  grant  of  the  use  of  it  in  that  particular  manner. 
4  Day,  244.  See  7  Cowen,  266 ;  10  Wend.  167;  10  Conn.  213;  4  Rand. 
58. 

{b)  Public  ivay.  The  mere  use  of  a  road  through  a  forest,  cannot  by  a 
lapse  of  time,  confer  a  right  of  way.  1  Bail.  R.  56.  To  establish  a  road  by 
prescription,  the  user  mus<  have  been  adverse  and  exclusive,  id.  p.  311.  A 
way  by  prescription  can  properly  exist  only  after  an  adverse  user  for  60 
years.  14  Mass.  49;  5  Pick.  42L  But  the  presumption  of  a  grant  of  way 
may  exist  after  a  user  of  at  least  20  years ;  2  Pick.  466 ;  3  id.  408.  In 
Pennsylvania,  uninterrupted  enjoyment  for  21  years  is  considered  presump- 
tive evidence  of  a  grant  of  the  easement  whether  the  land  be  enclosed  or 
not.  2  Whar.  R.  427.  And  occupation  adverse  to  a  right  of  way  for  the 
same  length  of  time  bars  tlie  easement  id.  p.  123.  See  16  S.  &  R.  394;  2 
Walts,  23;  12  Pick.  184. 

Proof  that  all  persons  have  been  accustomed  to  pass  over  a  common  will 
not  be  sufficient  to  establish  it  a  highway.  7  Pick.  68.  But  a  grant  of  a 
public  square  or  street  may  be  presumed  from  lapse  of  time,  so  far  as  to  bai 
an  indictment  for  a  nuisance.    I  Whar.  R.  469. 


Sect.   1.]     Presumptions  by  Courts  and  Juries. 


431 


their  opinion  of  the  real  facts  ;  as,  when  faculties  are  presum- 
ed for  regulating  the  right  to  pews  or  vaults.  (2)  The  like 
may  be  said  of  copyhold  customs,  (3)  and  the  liabiUty  to  re- 
pair fences.  (A.)  Various  other  instances  might  be  added,  rest- 
ing as  well  upon  modern  as  immemorial  title.  (5) 

It  has  been  said,  that  an  act  of  parliament  may  be  presum- 
ed.(l)  *Thus,  where  a  road  obstructing  a  navigable  channel 
had  existed  for  so  long  a  time,  that  the  state  of  the  channel 
could  not  be  proved,  it  was  considered  that  an  act  of  parlia- 
ment, or  a  writ  of  ad  quod  damnum,  might  be  presumed, 
which  had  extinguished  the   public  right  in  the  channel.  (2) 

Grants  from  the  Crown  may  be  presumed ;  but  where  such 
a  presumption  has  been  made,  it  has  been  under  particular 
circumstances,  and,  after  a  much  longer  period  of  time  than 
has  been  deemed  sufficient  for  raising  the  presumption  of  a 
grant  from  private  individuals.  (3) 

Conveyances  between  private  individuals  are  often  recom- 
mended to  juries,  in  more  or  less  forcible  terms,  as  presumable 
in  favour  of  a  party  who  has  proved  a  right  to  the  beneficial 
ownership  of  property,  and  whose  possession  has  been  con- 
sistent with  the  existence  of  such  a  conveyance  as  is  to  be 
presumed,  especially  if  the  possession  cannot  be  accounted  for, 
and  would  have  been  unlawful,  except  on  the  supposition  of 
a  conveyance  ;  such  presumptions  are  made  to  prevent  justice 


Faculties. 


Fences. 


Act  of  par- 
liament. 

[  *475  ] 


Writ  o(  ad- 
quod  dam- 
num. 

Grants 
from  the 
crown. 


Private 
conveyan- 


(2)  Rogers  v.  Brooks,  cited  1  T.  R. 
43i,  n.  Peltman  v.  Bridger,  1  Phiilim. 
323.  Fuller  v.  Lane,  2  Adams,  425. 
Waiter  v.  Gunner,  1  Hagg.  314.  Corn. 
Dig.  Esgiise.  Byerley  v.  VVindus,  5  B. 
&  C.  1.  Mainwaring  v.  Giles,  5  B.  & 
A.  360.  Stock  V.  Booth,  1  T.  R.  430. 
Griffith  V.  Matthews.  5  T.  R.  296.  The 
presumption  of  the  right  of  pew  against 
a  wrong  doer  appears  to  be  diti'erent 
from  that  which  would  be  made  against 
churchwardens. 

(3)  A  single  entry  upon  the  rolls  may 
afford  evidence  from  which  a  copyhold 
custom  may  be  presumed.  Doe  d.  Ma- 
son V.  Mason,  3  Wil.s.  63. 

(4)  6  B.  ^  C.  337.  Chectham  v. 
Hampson,  4  T.  R.  318;  2  Wms.  Saund, 
285,  n.  4;  290,  n.  7.  Booth  v.  Wil- 
son, 1  B.  ^  A.  59.  Churchill  v.  Evans, 
1  T.  R.  529.  Yin.  Ab.  til.  Fences.  Com. 
Dig.,  action  on  the  case   for   negligence. 

(5)  See  Gray  v.  Bond,  2  B.  8f  B.  667, 
presumed  grant  of  right  of  lending  nets. 
As  to  the  presumption  of  the  endowment 
of  vicarages,  VVooley  v.  Brownhill, 
M'Clel.  321.  Inman  v.  Whormby,  1 
Y.  &.  J.  545.  VVooley  v.  Birken.shaw, 
12  Price,  702.  Appeiley  r.  (iill,  1  C. 
If  P.  316.  The  abandonment  of  the 
rights    to    ways,    commons    and   light 


may,  it  is  conceived,  notwithstanding 
the  statute,  soiDetitnes  give  rise  to  ques- 
tions of  presumptive  evidence.  See  3 
B.  8c  C.  339,  as  to  the  waiver  of  an  im- 
plied covenant  in  law  within  twenty 
years,  in  the  case  of  lights.  As  to  re- 
leases of  incorporeal  rights,  see  12  Ves. 
265;  2B.  &  A.  791;  3B.  &  C.  339; 
15  East,  108;  1  St.  102;  1  Price,  251, 
253;  Vin.  Ab.  16,  pi.  3. 

(1)  By  Lord  Mansfield,  in  Eldridge  v. 
Knott,  Cowp.    215,  citing  Lord  Coke. 

(2)  Rex  r.  Montagu,  4  B.  &  C,  599. 
See  Cowper,  215;  1  Eden,  296;  6  Ves. 
215;  2  Ves.  Jun.  583;  1  Jac.  8f  W.  63; 
Lopez  u.  Andrews,  Hays'  Conv.  11  n. 
That  a  private  act  of  parliament  may  be 
presumed,  Skinner,  78;  12  Ves.  265. 
That  the  relinquishment  of  public  rights 
is  not  to  be  presumed  in  the  sanie  man- 
ner as  that  of  private  rights,  Vooght  v. 
Winch,  2  B.  ^  A.  662.  4  Burr.  2613; 
7  East,  199. 

(3)  Roe  V.  Ireland,  11  East,  161,  en- 
franchisement of  a  copyhold  by  the 
Crown,  presumed  after  an  enjoyment  of 
more  than  a  hundred  years.  Rex  w. 
Brown,  cited  by  Lord  Mansfield,  Cowp. 
110;  1  J.  4-  W.  159.  Mayor  of  Kiiiga- 
ton  V.  Horner,  Cowp.  102.  Lord  Mans- 
field, in  Eldridge  t;.  Knot,  Cowp.  115. 


432  On  Presumptive  Evidence.  [Ch.  20. 

being  defeated  by  a  mere  formal  objection  to  the  party's  title 
ia  a  Court  of  Law.  (4)  (a)  But  ^vhere   the  original  possesion 

(4)  Per  Tindai,  Ch.  J.,  in  Doe  v.  pointing  to  thetn;  per  Bayley,  J.,  and 
Cooke,  6  Hing.  180.  See  Matthews,  Lord  Tenterden,  Ch.  J.,  in  Doev.  Reed, 
on  Presumptions,  ch.  xi.  Reconveyances  5  B.  ^  A.  237.  It  has  been  doubted 
of  Mortgages,  2  Sim.  &  Stu.  154^  B.  whether  deeds  can  be  presumed  in  regis- 
N.  F.  10.  Conveyances  by  trustee  to  ter  counties  in  opposition  to  the  want  of 
cestui  que  trust,  8  T.  R.  122,  1  J.  &  registration.  Doe  v.  Hurt,  H  Price,  475. 
W.  620.  The  doctrine  extends  to  con-  Surrender  of  lease  not  presumed,  Doe  v. 
structive  trusts,  12  Ves  239,  251.  Re-  Thomas,  9  B.  ^  C.  288.  Non-pay- 
conveyance  of  feoffer,  Tenny  v.  Jones,  nieui  of  tithe  does  not  raise,  as  against  a 
3  M.  <^  S.  472.  Conveyances  from  old  lay  improprietor,  a  presumption  to  go  to 
to  new  trustees,  1  H.  Bl.  446,  459. —  the  jury  of  a  grant  of  tithe  to  the  land- 
Mesne  assignments  of  leaseholds,  Eafl  «j  owner,  Bayley  v.  Drever^  1  A.  4"  E. 
Baxter,  2  Bl.  1228;  11  Ves.  350;  Jn-  449.  Presumption  of  disseverance  of 
on.  12  Vin.  Ab.  223;  Skinner,  77;  tithes,  Countess  Dartmouth  v.  Rob- 
per.  Le  Blanc,  8  East,  266;  per  Lord  erts,  16  East,  334,  where  Lord  Ellen- 
Bldon,  1  Turn.  29;  As  to  the  point  borough  quotes  a  dictuin  of  Lord  Ken- 
whelher  fines  or  recoveries  could  not  be  yon,  that  he  would  presume  two  hun- 
presumed,    without     evidence    directly  dred  deeds  if  necessary. 

(a)  The  statute  of  limitations  ordinarily  constitutes  a  sufficient  title  or  de- 
fence. And  where  the  circumstances  of  the  case  justify  it,  a  presumption 
of  a  grant  may  as  well  be  presumed  in  the  case  of  corporeal  as  incorporeal 
hereditaments.  A  grant  of  lanid  may  as  well  be  presumed  as  a  grant  of  a 
fishery,  or  of  a  common,  or  of  a  way.     By  Story,  J.,  7  Wheat.  109. 

However,  in  Sumner  v.  Child,  2  Conn.  607,  it  was  held,  that  a  grant  of 
lands  could  not  be  presumed  from  possession  and  length  of  time.  Mr.  Jus- 
tice Gould  observes,  that  "  whenever  length  of  possession  is  admitted,  as 
presumptive  evidence  of  title  to  corporeal  hereditaments,  it  is  only  as  sec- 
ondary corroborative  evidence  of  an  an  actual  conveyance,  or  of  some  ac- 
companying requisite,  of  which  the  original  and  best  evidence  has  been 
lost." 

It  is  said  in  note  to  a  former  edition  of  this  work  (1st  Am.  ed.  1816),  that 
the  presumption  "equally  applies  to  lands  and  tenements."  The  editor 
cites  among  other  cases,  10  J.  R.  377  ;  3  Mass.  399  ;  and  10  id.  105  ;  "nei- 
ther of  which  alFords  any  countenance  to  such  a  proposition."  By  Gould,  J., 
2  Conn.  632.  "  And  with  respect  to  the  other  cases  brought  together  by  the 
editor,  for  the  same  purpose,  it  may  be  safely  asserted,  that  they  all  proceed 
upon  principles  totally  distinct  from  tliat  conclusive  rule  of  presumption, 
which  obtains  in  the  case  of  incorporeal  ri^hts.^— It  may  be  sufficient  to  ob- 
serve, that  in  several  of  them,  the  presumption  was  founded  upon  special 
corroborating  circumstances,  accompanying  the  possession ',  and  that,  in 
most  of  the  others,  the  fact  in  question  was  presumed,  in  pursuance  of  the 
maxim,  that  'what  ought  to  haVe  been  done,  shall  be  presumed  to  have 
been  done ; '  so  that  where  a  party  is  entitled  to  a  conveyance,  a  conveyance 
shall  be  presumed."  id. 

"  Length  of  possession  may,  with  other  circumstances,  be  proved  to  perfect 
the  title  to  lands  and  tenements.  But  the  distinction  between  the  principle 
of  those  cases  and  the  doctrine  of  conclusive  presumption,  in  the  case  of 
incorporeal  rights,  is  very  broad,  and  I  think,  very  clear.  The  rule  of  dis- 
crimination, I  take  to  be  this :  when  an  actual  transfer  of  title,  of  which 
the  deed,  or  any  other  necessary  original  evidence,  is  lost,  is  to  be  made  out, 
in  whole,  or  in  part,  by  secondary  evidence ;  length  of  possession  is,  like  any 
ether  circumstantial  fact,  admissible,  as  corroborative  evidence,  and  only  as 
corroborative  evidence,  of  such  transfer.  And  here  it  is  immaterial,  whether 
the  subject  in  question  be  incorporeal  or  corporeal,  id.  But  where  length 
of  time  is  relied  upon  as  a  presumptive  bar,  i.  e.,  where  mere  length  of  pos- 
session is  the  only  fact  required  to  be  proved,  and  is,  of  itself,  the  conclusive 


Sect.   1.]      Presumptions  hij  Courts  and  Juries.  433 

of  property*  may  be  accounted  for,  and  is  consistent  with  the    [*476] 
fact  of  there  having  been  no  conveyance,  it  seems  proper  to 
direct  a  jury  to  presume   a  conveyance  or   not,  according  to 
their  actual  belief  on  the  subject.  (1) 

With  regard  to   the  presumptions  of  a  conveyance  from  a  c<">vey- 
trustee  to  a  cestui  que  trust,  and  of  the  surrender  of  outstand-  uZ^Je""^ 
ing  terms,  which  are  often  necessary  in  order  to  constitute  a  Pi"""*'"'- 
legal  title  in  an  action  of  ejectment,  considerable   differences  '"°  '^™*' 
of  opinion  have  been  expressed.     As  these  questions  are  some- 
what  removed  from  ordinary   comprehension,  it  may  be  ex- 
pected, that,  although  they  must  be  submitted  to  a  jury,  yet 
that,  in  point  of  fact,  they  will  ordinarily  be  decided  upon 
principles  of  law  by  the  Judge.     A  surrender  of  an  outstand- 
ing term  will,   in   general,   be  presumed,  where  the    trustees 
ought  to  convey  to  the  beneficial  owner,  (2)  or  where  a  term 
is  satisfied,  and  is  set  up  by  a  mortagagor  against  a  mortga- 
gee. (3)  But  such  a  presumption  will  not  be  made,  where  it 
would  have  been  a  breach  of  trust  in  the  trustees  to  have  sur- 
rendered the   term;   (4)  or,   in  general,  where  the  surrender 
would  have  been  against  the  interests  of  the  owner  of  the  in- 
heritance, especially  if  the  term  has  been  recognised   as  sub- 
sisting at  a  late   period.  (5)  The  mere  fact  of  a  term  having 
been  satisfied  does  not  aftbrd  sufficient  ground,  upon  which  a 
jury  can  presume  it  surrendered.  (G) 

*It  has  been  considered,  that  when  acts  are  done  or  omitted    [*477] 
by  the  owner  of  the  inheritance  and  persons  dealing  with  him 
as  to  the  land,  which  ought  not  reasonably  to  have  been  done 
or  omitted  if  the  term  existed  in  the  hands  of  a  trustee,  a  sur- 
render may  be  presumed.  (1 )  (a) 

(1)  Doe  (].  FenwicU  v.  Reed,  5  U.  &  792.  See  further  on  tliis  conlroverted 
A.  233.  It  was  j.iid  that  the  presmnp-  suh;ect,  Uoe  v.  Hilder,  2  B.  <^  A.  7S2. 
lion  of  grants  and  conveyances  h;i(I  IJartleet  r.  Downes,  3  B.  &:  C.  616. — 
gone  to  too  great  a  length.  See  Levett  Doe  v.  Plowman,  2  B.  ^  Ad.  573. — 
«.  Wilson,  3  Bing.   115.  Towsend  r.Chainpernown,l  Y.  4- J.  .538. 

(2)  By  Lord  Kenyon,  Doe  v.  Staple,  Doe  d.  Harriinond  r.  Coolie,  6  Bing. 
2  T.  II.  696.  Doe  v.  Sybourn,  7  T.  174.  Day  v.  Williams,  2  Cr.  Sf  J. 
R.  2.  460.      Doe  ».  I'ulland,  Sugd.  V.    &.    P. 

(3)  Ibid.  8th  ed.  440.     Marq.    Townsond    v.   Bp. 

(4)  Keen  v.  Dearden,  8  East,  2G7.         of  Norwich,  ib.  443.    Cholmondeley  «. 
(.5)   Dor  r.  Scott.  11  East,  478.    vSee     ('linton  ib.  444.     Aspinal  v.    Keinpson, 

Doe  u.  Wright,  2  B.  &  A.  720.  ib.    lUi     Sugden's    V.    &    P.    8ih    ed. 

(6)   Evans  v.    Bicknel,    6    V'es.    184,  440  to  446.       IMalthew.s  oil    Prcsump- 

Sugd.  V.  &  P.  424;  7th  ed.  tions,  226  to     59. 

(1)   Per  Lord  Tenterden,  2    B.  4-    A. 

fact,  from  which  a  title  is  to  be  peremptorily  presumed,  vpon  the  prinapJc  of 
iiaietins:  possession,  and  whellier  an  ori',nnal  title  is  believed  to  have  existed, 
or  not,  the  subject  in  controversy  alwaya  is,  and  must  be  an  iiici)r])or(  al 
rifrht.  id. 

{a)  See  .3  Wend.  149;  4  id.  .18  ;  id.  .^543  ;  G  id.  228  ;  4  id.  (YAli.    'J'hc  talc- 
incr  of  a  new  lease  by  y)arol,  is  by  operation  of  law  a  surrender  of  the  old 
one,  although  it  be  by  deed,  provided  the  lease  be  a  good  oin;  and  operate 
55 


434  On  Presiunptive  Evidence.  [Ch.  20. 

The  principal  difference  of  opinion  has  existed  in  respect  of 
the  presnmiition  of  the  surrender  of  terms,  from  the  circum- 
stance of  their  not  being  noticed  in  recent  marriage  contracts 
or  other  conveyances.  It  should  seem  that  the  Courts  of  Law 
had  in  some  instances  proceeded  on  an  erroneous  opinion  as 
to  the  practice  of  noticing  outstanding  terms  upon  such  occa- 
sions. But  the  Courts  of  Equity  having  expressed  great  dis- 
satisfaction at  the  decisions  of  the  Courts  of  Law  as  to  this 
matter,  the  Courts  of  Law  appear  to  have  been  desirous,  in  la- 
ter cases,  to  assimilate  their  decisions  to  those  of  the  Equity 
Courts.  According  to  one  of  the  most  recent  decisions  upon 
the  subject  in  the  Court  of  King's  Bench,  Lord  Tenterden  ob- 
served, that  the  authorities  which  had.  been  discussed  had 
been  much  questioned  ;  and,  in  answer  to  an  inquiry  made 
by  him,  whether  a  term,  lilce  that  under  consideration,  had 
been  usually  noticed  in  a  marriage  settlement,  having  receiv- 
ed an  answer  in  the  negative,  he  observed,  "  if  that  be  so, 
there  is  no  ground  for  presuming  that  this  term,  which  was 
assigned  to  attend  the  inheritance,  was  ever  surrendered."  (2) 
VVhere  the  ground  for  the  presumption  of  a  conveyance  be- 
tween private  individuals  is  simply  that  of  length  of  posses- 
sion, it  should  seem  that  the  Courts  have  imposed  a  restriction 

r  *478  1  upon  *the  discretion  of  juries.  It  has  been  held,  that  posses- 
sion of  land  for  any  period  less  than  twenty  years  by  a  feoffee 

Livery.  is  not  sufficient  to  found  a  presumption,  that  livery  of  seisin 
has  accompanied  the  feoffment.  (1) 

Licences.  Licenses  may  be  presumed  after  a  shorter  space  of  time  than 
is  ordinarily  required  for  the  presumption  of  actual  conveyan- 
ces. Thus  where  an  inclosure  had  been  made  from  a  waste 
twelve  or  fourteen  years,  and  had  been  seen  by  the  steward 
of  the  lord  from  time  to  time,  without  objection  being  made, 

(2)  The  subject  is  fully  discussed,  by  Wightw.  123.     The    period   of  twenty 

Sir  E.  Sudgen,  in  the  last  edition   of  his  years  has  been  adopted    by    the    Courts, 

book  on   Venders   and  Purchasers    (9th  in  various  instances,  for  the  purpose  of 

ed.  A.    D.    1837).     He   concludes,  that  raising  presumptions,  in  analogy,  proba- 

the  profession  are  justified  by  the  author-  bly,  to  the  statute  of  James;  ijut,  in  re- 

ities  in  considering  the  law  to  stand  as  it  gard  to  the  proof  of  written  instruments, 

did,  before   the   decision  in  Doe  v.  Ilil-  by  their  production  from  the  proper  cus- 

der.  tody,    without     further  proof  of  execu- 

(1)  Doe  d.  Wilkins  v.   Marq.    Cleve-  tion,  the  period  of  thirty  years  has  been 

land,  9  B.  ^   C.  871.     As   to  the   pre-  adopted,  11  East,  504;  4  B.  &  A.  376; 

sumption    of  livery  of  seisin,    Isack    v.  5  T.  R.  359;  2  M.  &  S.   337;  2  B.  ^  C. 

Clarke,  Roll.   Rep.  132,    pi.  9.     Biden  814.      Vide  infra,  part  2. 
V.  Loveday,  Vern.  196.    Rees  v.  Lloyd, 


to  pass  an  interest  according  to  the  intention  of  the  parties.     15  Wend.  400. 
Surrenders  are  favored  in  law  and  require  no  technical  words,  but  only 
such  as  require  an  intention  to  yield  up.     Gwyn  v.  Wellborn,  1  D.  &  B. 
318. 


Sect.   1.]      Presumptions  by  Courts  and  Juries.  435 

it  was  left  to  the  jury  to  say,  whether  the  inclosure  was  made 
by  the  lord's  license.  (2)  («) 

Although  there  do  not  remain  any  traces  of  a  bye-law  in  %e-iaw. 
the  corporation  books,  and  although  there  cannot  be  any  proof 
given  of  the  loss  of  it,  yet,  upon  evidence  of  constant  usage, 
a  jury  may  be  directed  to  presume  it's  existence.  Sixty  years 
usage  has  been  considered  evidence  of  a  bye-law.  (3) 

It  has  sometimes  been  laid  down,  that  a  conspiracy  to  levy  Presump- 
war  against  the  King,  when  proved,  amounts,  in  presumption  Ire'aUa. 
of  law,  to  a  compassing  of  the  King's  death  ;  but,  on  the  other 
hand,  there  are  still  higher  and  better  authorities,  both  ancient 
and  modern,  for  considering,  that  a  jury  are  not  bound  to 
make  such  a  presumption,  unless  they  are  satisfied,  that  the 
conspiracy  was  of  such  a  nature  as  in  it's  consequences  to  oc- 
casion probable  danger  to  the  King's  life.  (4) 

*Presumptions  of  the  payment  of  money  have  been  sanction-  ^^y*  „ 
ed  in  various  cases.     Where  it  has  been  usual  between  parties  r  *479  1 
to  make  payments,  that  frequently  become  due,  without  taking 
written   vouchers,   and  a  long  time  has    elapsed  Avithout  any 
complaint  being  made  of  non-payment,   the  fact  of  payment 

(2)  Doe  ».  Wilson,  11  East,  56. —  Phillip's  observations  on  Lord  Russell's 
Goodtitle  v.  Baldwin,  11  East,  488.  case,  in  his  abridgment  of  the  State  Tri- 
Ditchaiii  V.  Bond,  3  Camp.   523.  als;  and  Luder's  tracts  on  Treasons.  The 

(3)  See  Rex  v.  Head,  4  Burr.  251S.  charge  of  Chief  Justice  E^re,  in  Har- 
Rex  r.  Bird,  13  East,  368.  Per  Lord  dy's  case;  his  summing  up  in  Ilorne 
Mansfield  in  Perkins  v.  Warden  of  the  Tooke's  case;  the  summing  up  of  Lord 
Co.  of  Cutlers,  21  IMiJS.  Serg.  Hill,  p.  Ellenborough,  in  Watson's  case,  are  in 
65;  2  Ves.  330;  B.  N.  P.  211;  4  Co.  favor  of  treating  the  presumption  as  one 
78;Cowp.    110.  of  pure  law. 

(4)  See   the   authorities  collected    in 


(ffl)  See  Whitney  v.  Holmes,  IG  Mass.  443. 

Where  the  tenant  cut  a  ditch  and  flowed  the  water  into  a  swamp  covered 
with  timber,  lield,  that  it  was  not  a  forfeiture.  The  court  observed,  that  "  if 
the  turning  of  tlie  creek  produced  waste  by  the  destruction  of  tlie  timber 
20  years  ago,  and  if  the  landlord  lies  by,  until  the  inheritance  is  bonelitted 
by  the  act,  it  would  be  unreasonable  to  admit  him  to  say  tiiat  tiiere  was  a 
forfeiture  by  an  act  in  which  he  had  so  long  acquiesced."  Jackson  v.  An- 
drews, 18  J.  R.  431. 

[h]  In  the  case  of  a  previous  debt,  if  the  creditor,  by  agreement  with  the 
debtor,  accept  the  promissory  note  of  a  third  person  payable  to  himself,  it  is 
presumed  to  be  in  satisfaction,  and  exlinijuishcs  the  original  consideration, 
and  may  be  pleaded  in  bar,  or  given  in  evidence  under  tiic  general  issue. 
Much  more,  wjien  the  seller  agrees  at  the  time  of  sah?,  to  take,  and  lie  doe.s 
then  take,  for  tlie  price,  the  note  of  such  third  person.  1  Dev.  &.  B.  3!)1  ; 
Tatlock  V.  Harris,  .3  T.  R.  180;  11  J.  R.  409  ;  3  Wend.  GG ;  7  Mass.  28G. 

Prima  facie  the  delivery  of  a  check  for  a  larger  sum,  is  evidence  of  pay- 
ment for  goods  sold.  G  C.  &  P.  G4.  But  where  a  check  on  a  bank  is  given, 
in  the  ordinary  course  of  business,  it  is  not  an  absolute  payujent  of  a  debt. 
1  Cowen,  3.")!);  1  Hall,  .IG.  If  liie  check  turns  out  to  be  unproductive,  witli- 
out  the  fault  of  him  who  receives  it,  the  original  indebtedness  remains  us  a 
good  foundation  for  an  action,  id. 


436 


On  Presumptive  Evidence. 


[Ch.  20. 


Rcpnlrd 
ownership. 


may  very  properly  be  presumed.  (1)  [a)  If  a  landlord  gives  a 
receipt  for  the  rent  last  due,  it  is  to  be  presumed  that  all  for- 
mer rent  due  from  the  tenant  has  been  paid.  (2)  (6)  Where 
a  bill  of  exchange,  negotiated  after  acceptance,  is  produced 
from  the  hands  of  the  acceptor,  subsequently  to  it's  becoming 
dne,  the  presumption  is  that  the  acceptor  has  paid  it.  (3) 

Where  a  person  has  been  the  absolute  owner  of  property, 
and  he  continues  in  possession  of  it  till  the  time  of  his  bank- 
ruptcy,  he  will  he  prima  facie  presumed  to  have  had  the  re- 


(1)  See  Lucas  %■>.  Novosilieski,  1  Esp. 
2f»G.  Selleii  v.  Norman,  4  C.  Sf  P.  8(i. 
Erans  v.  Birch, 3  Camp.  10.  Tophaiii  v. 
Lraddick,  1  Tnunt.   572. 

(2)  Gilb.  Ev.  157. 

{?>)  Gibbons  v.  Featherstonehaugh, 
1  St.  225.  rfiel  V.  Vanbatenburgli,  2 
Camp.  439.  See  Bciiibridge  )■.  Osborn, 
1  St.  374.  As  to  the  pro-umplion  of 
payincnt  arising  froiri  the  production  of 
a  clieque,  see  lioswell  v.  Siriilh,  C.  I'c  P. 
60.  Pearce  v.  Davis,  1  U.  &  Ro.  365. 
Egg  ?•.  Barnet,  3  Esp.  196.  Govv,  16; 
4  Taunt.  293.  Lloyd  v.  Sandilands, 
Govv,  16.  Thai  the  payment  of  money 
does  not  in  general  raise  tiie  presumption 
of  a  loan,  Welsh  v.  Seabone,  1  St.  474; 
Carey  v.  Gerrish,  4  Esp.  9;  Holden  v. 
llartsink,  4  Esp.  46.  As  to  a  presump- 
lioii  of  gift  to  a  relative.  Hick  v,  Keats, 
4  B.  &.  C.  71.  Sec  further  on  the  pre- 
sumption of  payment,  Cooper  v.  Turner, 


2  St.  207.  4  Taunt.  293.  On  the  pre- 
sumption of  the  satisfaction  of  judgments) 
warrants  to  confess  judgments,  decrees 
statutes,  recognizances,  annuities,  por- 
tions, legacies,  liens  for  purchase  montjy. 
quit  rents,  Matihevrs  on  Presumptions, 
ch.  19  i*c  20.  \\  iilauine  v.  Gorges,  I 
Camp.  217.  Ilulke  ».  Pickering,  2  B. 
C.  555.  Cowp.  214.  On  the  subject 
of  the  payment  of  bonds,  see  the  stat- 
ute 3  &  4  W.  4,  c.  42.  Before  the 
statute,  payment  might  have  been  pre- 
sumed within  twenty  years, if  circumstan- 
ces, occurred  to  fortify  tiie  presumption 
arising  from  lapse  of  time,  as  a  settle- 
ment of  accounts.  Colsel  y.  Budd,  1 
Camp.  27.  Oswald  v.  Leigh,  1  T.  R. 
270.  The  production  by  the  assured  of 
a  policy,  with  an  adjustment,  and  the 
name  of  the  defendant  struck  off,  does 
not  prove  payment,  Adams  v.  Saunders, 
M.  l^  M.  373. 


[a]  Payment  from  lapse  of  time  in  a  court  of  chancery  is  a  conclusion  to 
be  drawn  by  the  court  from  the  proofs,  in  like  manner  as  they  are  drawn  by 
a  jury  in  a  court  of  law.  5  J.  Ch.  R.  545.  Payment  of  money  is  presumed 
after  a  great  kpse  of  time,  because  the  evidence  of  the  fact  may  be  pre- 
sumed to  be  lost.  But  the  same  presumption  is  not  applicable  to  the  extin- 
guishment of  a  right  to  rent,  where  the  relation  of  landlord  and  tenant  is 
once  established,  by  a  conveyance  of  the  interest  in  remainder  to  the  tenant, 
which  can  only  be  by  deed.  .Tackson  v.  Davis,  5  Cowen,  123.  Such  a  pre- 
sumption is  not  a  presumption  of  law  which  cannot  be  contradicted;  but  is 
a  presumption  in  the  nature  of  evidence,  id. ;  3  J.  R.  283. 

Where  there  is  neither  payment  of  rent  nor  acknowledgment  for  20  years; 
as  where  a  mortgagee  has  never  entered  into  the  possession  of  the  premises, 
and  no  demand  or  payment  has  been  made  of  principal  or  interest  for  20 
years,  the  presumption  is  that  the  mortgagee  is  satisfied.  Bui.  N.  P.  110  ; 
3  J.  R.  386  ;  7  id.  282  ;  12  id.  242. 

Payment  of  a  bond  may  be  inferred  from  lapse  of  time;  and  this  inference 
is  a  presumption  of  law  ;  and  the  rebuttal  of  such  presumption  by  circum- 
stances is  also  a  matter  for  tlie  court ;  though  the  truth  of  the  facts  is  to  be 
left  to  the  jury.    2  Whar.  503. 

{/j)  Brewer  v.  Knapp,  1  Pick.  337.  Here,  the  lease  was  for  one  year,  but 
the  tenant  occupied  upwards  of  two  years,  and  paid  part  of  the  rent  for  the 
first  year,  and  the  sum  of  $230  afterwards,  but  whether  this  latter  sum  was 
paid  before  or  after  the  rent  had  accrued  for  the  second  year,  did  not  appear. 
The  Court  held,  that  the  lessor  might  apply  it  to  rent  due  after  the  term, 
although  there  were  sureties  for  the  payment  of  the  first  years  rent. 


Sect.  1.]      Presumptions  bij  Courts  and  Juries. 


437 


puted  ownership  of  it,  unless  he  has  made  the  change  of  prop- 
erty  notorious  ;  but  if  he  has  never  been  the  absohite  owner, 
*it  will  be  necessary  to  establish  the  fact  of  a  reputed  owner-  [  *4S0  ] 
ship  by  other  means  than  proof  of  possession,  (1) 

There  are  several  branches  of  law,  in  which  there  are  rules  Aroppiancc 
founded    on  the  presumption  that  a  party  is  willing  to  accept  °'  ''*'"'^'''- 
a  benefit.     Thus,  it  has  been  held,  on  the  ground  of  this  pre- 
sumption, that  a  surrender  immediately  divests  the  estate  out 
of  the  surrenderor,  and  vests  it  in  the  surrenderee,  before  no- 
tice or  agreement.  (2) 

Besides  the  presumptions  which  have  been  mentioned,  there  If^^'a,'*^*'^*' 
are  various  others,  which  liave  been  adopted  by  the  Courts  of  Couns. 
Equity  and  the  Ecclesiastical  Courts,  but  which  are  more  sel-  £    j^ 
dom  used  in  common  law  proceedings.  (3) 

It  would  be  impossible  to  include,  within  convenient  limits, 
a  notice  of  the  various  presumptions,  which  have  received  ju- 
dicial sanction  ;  upon  the  etfect  of  which,  useful  observations 
may  be  found  in  the  works  of  legal  writers.  Indeed  the  grea- 
ter part  of  the  rules  of  evidence  is  founded  upon  presumptions  ; 
*and  consequently  the  subject  of  the  present  chapter  receives  [  *481  ] 
illustration  from  nearly  every  other  chapter  of  the  present 
Work.  (1) 


(1)  Lingard  v.  Messiter,  1  B.  &  C. 
312,  Storer  v.  Hunter,  3  B.  &  C. 
374. 

(2)  Thompson  v.  Leach,  2  Saik.  618, 
Hargr.  Co.  Litt.  337,  b.  n.  1.  See 
Touson  V.  Tickle,  3.  B.  &.  A.  31;  2 
Salk.  618;  2  Swanst.  365;  5  Madd. 
435. 

(3)  Presumptive  revocation  of  a  will 
from  marriage  and  birth  of  a  child, 
Johnston  v.  Wharton,  1  Phillim.  447; 
Hoi  way  v.  Clarke,  1  Phillim.  339;  Em- 
erson V.  Boswell,  1  Phillim.  342.  Pre- 
sumption that  a  testator  has  destroyed 
his  will,  where  it  is  known  to  have  been 
in  his  custody,  and  is  not  found  after  his 
death,  Rickords  v.  Mumford,  2  Phillim. 
24;  3  Phillim.  128,  552;  2  Hagg.  2  Ser. 
266,  192.  Presumption,  that  where  a 
later  will  is  destroyed,  and  a  former  one 
uncancelled,  the  former  is  not  revived, 
Wilson  V.  Wilson  3  Phillim.  543;  Glaiz- 
er  V.  Glaizer,  4  Burr.  2512.  i^o  where 
a  duplicate  is  left  uncancelled,  Colvin  v. 
Fraser,  2  Hagg.  2  Ser.  2G6.  The  pre- 
sumption against  a  Will  in  the  hand- 
writing of  a  party  benefited,  1  Phillim. 
193;  2  Phillim.  323.  Presumption 
against  an  unexecuted  will,  or  an  unwit- 
nessed attestation  clause,  2  Phillim.  122; 
3  Phillim.  5,  628,  24,  524;  2  Phillim. 
177;  I  Ad.  383.  Presumption  in  favor 
of  INIarriage,  2  Phillim.  51;  1  IMiillim. 
294.     Presumption    of  the   commission 


of  adultery,  under  parlicnlar  circumstan- 
ces, Elliot  V.  Elliot,  1  Hagg.  1  Ser.  302. 
Williams  v.  Williams,  1  Hagg.  303;  Sir 
J.  Astley's  case,  1  Hagg.  2  Ser.  716. 
For  presumptions  in  Courts  of  Equity, 
see  Matthews  on  presumptions.  Courts 
of  Equity  presume,  in  the  case  of  ten- 
ant rights  of  renewal,  that  a  new  lease 
has  been  obtained  with  reference  to  the 
interest  in  the  former  lease.  Hargr.  Co. 
Litt.  290,  b.  n.  1,  xi.  that  a  legacy 
charged  on  real  eastate  should  not  vest 
till  the  time  when  it  is  made  payable, 
Hargr.  Co.  Litt.  227  a,  n.  1. 

(1)  See  Bentham's  Rationale,  vol.  iii. 
p.  598,  authentication  of  writings  by 
presumptions,  ex  visu  scriptionis,  ex 
scfiptis  olim  visis,  ex  cotuparatime 
scriptorum,  ex  custodid,  ex  tenore  ; 
CT  visu  oJficiali,nnd  the  due  authentica- 
tion of  writings  by  the  lii<e  presumptions. 
In  the  same  volume  will  be  found  many 
valuable  remarks  on  the  dill'erent  s[)e- 
cies  of  circumstantial  evidence,  which 
are  of  the  most  ordinary  occurrence. — 
On  the  presumptions  of  dates  of  letters 
and  promissory  notes,  Hunt  v.  IVIussey, 
3R.  itM.  109.  Smith  v.  Battens,  1 
IM.  &.  U.  341.  Custody  of  letter  by  ex- 
ecutrix, Drew  V.  Dnrnborough,  2  ('.  iV 
P.  198.  Of  receipt  of  letter,  Kieran  v. 
.lohnson,  1  St.  109.  Presuiniition  of 
negligence  from  iho  overturning  of  n 
coach,  Christie  v.  Greggs,  2  Camp.  79; 


438  On  Prcsumpiive  Evidence.  [Ch.  20- 

Section  II. 

On  the  Jtclcvancy  of  Presumptions. 

Irrelevant  With  rcspcct  to  prosumptions  whicli  are  too  remote  to  ad- 
fiwis"'"''"  ^^'t  of  any  reasonable  direction  to  a  jury  in  regard  to  the  is- 
sue which  they  have  to  try,  a  very  nice  exercise  of  discretion 
often  devolves  upon  the  Judge.  It  is  his  duty  to  confine  the 
evidence  to  the  points  in  issue,  lest  the  attention  of  juries 
should  be  distracted,  and  the  public  time  needlessly  con- 
sumed ;  but  in  deciding  that  the  evidence  of  any  particular 
circumstance  is  not  receivable  upon  this  ground,  he  must  im- 
pliedly determine,  that  no  presumption  to  be  drawn  from  that 
circumstance  ought  properly  to  have  an  effect  upon  the  minds 
of  the  jury.  (2)  In  several  instances,  rules  have  been  estab- 
lished for  the  guidance  of  Courts  of  Justice  upon  this  sub- 
ject, 
o^lniracts  *  ^^  ^^  Considered,  that,  in  general,  no  reasonable  presumption 

r  *4S2  1  ^^^  ^®  formed  as  to  the  making  or  executing  of  a  contract  by 
a  party  with  one  person,  in  consequence  of  the  mode  in  which 
he  has  made  or  executed  similar  contracts  with  other  persons. 
Where  the  question  between  a  landlord  and  his  tenant  is, 
whether  the  rent  was  payable  quarterly  or  half-yearly,  it  has 
been  held  irrelevant,  to  consider  what  agreements  subsisted 
between  the  landlord  and  other  tenants,  or  at  what  time  their 
rents  would  become  due.  (1)  So,  where  the  question  was  as 
to  the  quality  of  beer  to  be  furnished  by  the  plaintiff  to  the 
defendant,  it  was  held,  that  evidence  could  not  be  admitted 
of  the  quality  of  beer  supplied  by  the  plaintiff  to  other  per- 
sons.  (2) 

On  the  other  hand,  it  may  frequently  be  very  proper,  and 
in  some  cases  absolutely  necessary,  to  look  beyond  the  trans- 
action, which  is  the  immediate  subject  of  inquiry,  into  pre- 
vious transactions,  for  the  purpose  of  making  a  just  inference 
as  to  the   knowledge  of  the   parties,  their  motives,  or  inten- 

Israel  ?•.  Clark,  4  Esp.  259.     Of  the  pre-  dence,  though   several   of  them   appear 

sumption  of  knowledge  of  the  contents  of  to   have  thought  the  presumption  arising 

books,  or  the  usage  of  trade,  vide  infra,  from  it  of  the  weakest  description. 
part   2;    and   supra.    Admissions.     On         (1)  Carter  v.  Pryke,    I'eake,    94. — 

the   presumption    of    acquaintance  with  For   other   examples,    Spencely   v.    De 

the    law,    Evan'.s    Pothier,    392.     Pre-  Wiilot,  7   East,    108.     The    point  fre- 

sumption's  after  verdict,  Spieres  v.  Park-  quently  arises   at  the  Quarter  Sessions, 

er,  1  T.  R.   141.  where  it  is  attempted  to  prove  the  terms 

(2)  In  some  instances.    Judges    have  on  which  a  master  hired  a  particular  ser- 

drawn  the  line   to  the  length  of  time  af-  vant,  by  the  manner  in  which  he   hired 

ter  a  robbery,  which  may  render  the  pos-  other  servants. 

session  of  stolen  goods  relevant,    Anon.         (2)  Holcombev.  Hewson,  2  Campb. 

2C.  &P.  459.     In  Mann    v.    Lang,    3  391.     See   Ballutti   v.    Serani,    Peake, 

A.  &  E.  705,  all  the  judges   appear   to  142.      Viney  v.  Barrs,  1  Esp.  293,  for- 

have  thought  the  probate  admissible  evi-  gery  of  another  acceptance. 


Sect.  2.]       On  the  Relevancy  of  Presiimjyiions.  439 

tioiis.  (3)  The  case  of  Hunter  v.  Gibson  and  Johnson,  (4) 
affords  an  instance  of  this  kind.  That  was  an  action  by  an 
indorsee  against  the  defendants,  as  acceptors  of  an  instrnment 
purporting  to  be  a  bill  of  exchange  ;  a  question  arose  on  the 
third  count,  which  stated  the  bill  to  be  payable  to  bearer,  under 
the  following  circumstances  :  It  appeared  in  evidence,  that  the  ou.er 
name  of  the  person  mentioned  as  payee  was  merely  fictitious,  {"n^.^'t'o 
but  this  fact  was  not  known  to  the  plaintiff ;  and  for  the  purpose  '*"""'' 
of  showing,  that  the  defendants  at  the  time  of  their  acceptance  """'  *  °^' 
knew  the  name  in  the  bill  to  be  fictitious,  or  that  the  defend- 
ants had  given  authority  to  the  drawer,  to  draw  the  bill  in  ques- 
tion payable  to  a  fictitious  person,  the  plaintiff  proposed  to 
prove,  that  the  defendants  had  given  a  general  authority  to 
the  *drawer  to  draw  bills  of  exchange  upon  them,  to  be  made  [  *4S3  ] 
payable  to  fictitious  persons,  and  evidence  to  this  etfect  was 
produced  ;  the  counsel  for  the  defendants  objected  to  this  evi- 
dence, on  the  ground  that  it  had  no  relation  to  the  particular 
bill  in  question,  and  that  the  facts  of  any  particular  transac- 
tion could  not  legally  be  inferred  from  circumstances  which 
applied  wholly  to  other  transactions.  Lord  Kenyon,  who 
tried  the  cause,  admitted  the  evidence ;  upon  which  the 
counsel  for  the  defendants  tendered  a  bill  of  exceptions.  The 
Court  of  King's  Bench  gave  judgment  for  the  defendant  in 
error.  A  writ  of  error  was  then  brought  in  the  House  of 
Lords ;  and  the  question  on  the  admissibility  of  the  evidence 
was  referred  to  the  Judges.  On  this  question  there  was  a 
division  among  the  Judges :  but  the  majority  of  them  being 
of  opinion  that  the  evidence  ought  to  have  been  received  and 
left  to  the  jury,  the  judgment  below  was  affirmed. 

With  respect  to  the  relevancy  of  a  presumption,  that  a  cus-  ^''■"o''"'' 
tomary  right  exists  in  one   place,  from  the  fact  of  its  being  in  other 
proved  to  exist  in  another,  it  is  to   be   observed,  that  when  a  JJ^-^""'*' 
right  is  claimed  by  custom  in  a  particular  manor  or  parish, 
proof  of  a  similar  custom  in  an  adjoining  parish  or  manor  is 
not,   in   general,   admissible   evidence.  (1)  In    the    Duke  of 
Somcrsefs  case.  Lord  Chief  Justice   Raymond   said,  he   had 
always  looked  upon  it  as  a  setled  principle  in  the   law,  that 
the  customs  of  one  manor  could  not  be  given  in  evidence  to 
explain  the   custom  of  another  manor  ;  "  for  if  this  kind  of 
evidence  were  to  be  allowed,  the   consequence  seems  to  be, 
that  it  would  let  in  the  custom  of  one   manor   into  another, 
and  in  time  bring  the  customs  of  all  manors  to  be  the  same." 

(8)  See  infra,  as   to   the  ■proof  of  957.      Furneaax    v.   llutcliings,  Cowp. 

knowledge  in  issuing    counterfeit   inon-  807.     By  IJuller  .1.,  in  Nol)le  r.  Kfiniio- 

ey.  way,  2  Doug.   .'512,  S.    P.;  by   Wood, 

(4)  8.  H.  Bl.  187,  288,  290,  295.  B.,  in  Doo  d.  Foster  r.   Sisson,  12  Kast, 

(1)  Duke    of    Somereet   v.    France,  C3,  S.  1*.     Erslunc  r.    Kufllc,    3  dwill. 

IStr.  C(il.     Kudiug  u.  Newell,   2   Sir.  9G5. 


440  On  Presutnptive  Evidence.  [Ch.  20. 

And  in  addition  to  this  argument  of  inconvenience,  the  ob- 
jection taken  to  the  evidence  in  that  case,  namely,  that  it 
was  inapphcable  to  the  point  in  dis{)ute,  appears  to  be  very 
strong  ;  customs  being  diiierent  in  dill'erent  manors,  and  in 
their  nature  distinct.  Unless,  therefore,  some  connection  or 
relation  is  proved  to  have  existed  between  them,  as  by  show- 

[  *4S4  ]  ing,  *that  they  were  all  formerly  holden  under  the  same  lord, 
or  that  the  one  manor  was  anciently  parcel  of  the  other  ma- 
nor, (1)  such  evidence  is  not  admissible. 

Rule  in  J3m;  several  cases   appear  to   have   determined  this  point, 

UNur'eT  °  that,  where  all  the  manors  within  a  certain  district  are  held 
by  the  same  peculiar  tenure,  and  a  question  arises  in  any  one 
of  them  upon  an  incident  to  the  tenure,  evidence  may  be 
given  of  the  usage  which  prevails  in  any  of  the  other  manors 
within  the  district.  The  first  reported  case  of  this  kind  is 
Cliampian  v.  Atkinson.  (2)  where  the  question  was,  whether 
a  general  fine  was  due  to  an  infant  admitting  lord  during  his 
minority,  and  the  defendants  were  allowed  to  give  in  evi- 
dence, upon  the  trial  of  this  issue,  that  other  adjoining  ma- 
nors had  the  same  custom,  not  to  pay  to  the  lord  before  he 
attained  his  full  age  ;  similar  evidence  was  there  said  to  have 
been  received,  on  a  question  of  copyhold  tenure,  between 
certain  manors  in  Middlesex. 

On  the  authority  principally  of  this  case  of  Champian  v. 
Atkinson^  the  Duke  of  Somerset's  case  (3)  was  decided.  On 
a  trial  at  bar  in  that  case,  where  the  issue  was,  whether  a 
general  fine  was  due  from  the  tenants  of  certain  manors  in 
Cumberland  to  the  Duke  as  next  admitting  lord,  the  Court 
after  much  argument  received  evidence,  that  the  same  fines 
had  been  ])aid  in  similar  cases  to  the  lords  of  other  manors. 
Lord  Chief  Justice  Raymond  and  Reynolds,  J.,  laid  down  the 
general  rule  as  above  stated,  and  were  strongly  against  ad- 
mitting the  evidence  ;  but  afterwards  agreed  to  receive  it,  on 
the  authority  of  the  precedent  in  Keble,  and  of  cases  said  to 
have  been  so  ruled  on  the  northern  circuit.  Fortescue,  J.,  the 
only  Judge  then  present,  thought  the  evidence  admissible, 
and  made  a  distinction  between  the  custom  and  the  tenure  of 
a  manor  ;  and  as  the  question,  there   to  be  tried,  merely  con- 

[  *485  1  cerned  the  tenure  of  tlie  *])laintift''s  manors,  he  was  of  opinion 
that  it  would  be  proper  to  inquire,  what  were  the  qualities 
that  attended  other  estates  holden  by  the  same  tenure. 

or  custom         \\\  the  casc  of  Furneaux  v.  Hutchins  on  a  question  rela- 

of  the  coun- 

(1)  Moulin  «.  Dalison,  Cro.  Car.  4S4.  judgment   of  Lord   Talbot,   Cb. ;    Deaa 

(2)  3  Keb.  90,  on  tri;il  at  bar.  and  Chapter  of  Ely  v.  Warren,   2    Atk. 

(3)  Duke  of  Somerset  v.  France,  1S9,  S.  P.  See  also  Cowp.  807,  808; 
I  Sir.  65S.  See  also  Lowther  v.  Raw  5  T.  11.  31;  and  Kex  v.  Ellis,  1  Manle 
and  others,  Fortesc.  44,  55,  S.  P.,  on  8,-  Selw.  662.  Lord  Barclay's  case, 
appeal  to  the  House  of  Lords   from   the  Hale  dejurc  maris ^  35. 


try. 


Sect.  2.]       On  the  Relevancy  of  Presumptions.  441 

tive  to  the  cnstoin  of  tithing  (1)  Lord  Mansfield,  after  laying 
down  the  general  rule,  that  "  proof  of  the  custom  in  one  par- 
ish is  not  evidence  to  atfect  another  parish,"  adds  this  qualifi- 
cation, "  unless  the  custom  is  laid  as  a  general  custom  of  the 
country."  Thus,  where  half  of  a  river  belongs,  by  the  con- 
stant custom  of  the  country,  to  the  lords  of  the  manors  on  each 
side  of  the  water,  proof  of  the  custom  in  one  manor  is  evi- 
dence of  the  same  customary  right  in  another.  (2)  It  is  evi- 
dence of  a  custom  pervading  one  common  district  of  manors. 

Where  in  each  of  several  submanors,  part  of  the  same  dis- 
trict and  belonging  to  the  same  lord,  there  appeared  to  be  a 
certain  peculiar  class  of  tenants  answering  the  same  descrip- 
tion, and  to  whom  their  tenements  were  granted  by  similar 
words,  it  was  held,  that  evidence  of  the  rights,  which  had 
been  enjoyed  by  the  tenants  of  one  manor  was  admissible  to 
shew,  what  rights  the  tenants  were  entitled  to  in  another.  (3) 

In  like  manner  acts  of  ownership    in  one    place  may  some-  Acts  of 
times  afford  a  legitimate  presumption  of  the    right  of  owner-  °ii\"u[,ir"^ 
ship  in  another.       In  an  action  of  trespass,  the  plaintiff  claim-  '*'"''• 
ed  the  whole  bed  of  a  river  flowing  between  his  land  and  the 
land  of  the  defendant,  the  defendant  contending  that  each  was 
entitled  at?  medium  Jilum  aqucs.     It  was  held,  that  it    was  al- 
lowable for  the  plaintiff  to  giv^e  in  evidence  acts  of  ownership 
exercised  by  him  upon  the  bed  and  banks  of  the  river  on    the 
defendant's  side  lower  down  the  stream,  and  where  it   flowed 
between  the  plaintiff's  land  and  a  farm  adjoining  the  defend- 
ant's land,  and  *also  of  repairs  done  by  the  plaintiff  to  a  fence  [  *486  ] 
Avhich  divided  that  farm  from  the  river,  and    which    was    in 
continuation  of  a  fence  dividing    the    defendant's  land    from 
the  river.  (1)     It  was  said  by  the  Court,  that  the  actsof  own- 
ership in  question  might  reasonably  lead  to  the  inference,  that 
llie  entire  edge  and  bed    of  the   river,    and   consequently  the 
part  in  dispute,  belonged  to  the  plaintiff.  In  the  previous  case 
of  Doe  d.  Barrett  v.  Kemp,  {2>)  it    had  been    decided  iu   the 

(1)  1  Cowp.  SOS.  H  venire  de  novo  was  granted,    because 

(2)  1  Maule  (^  Selw.  6G2.  tlie  Court  considered  iliai  they  could  not 

(3)  Rowe  I).  Brenton,  8  f>.  ^  C.  758.  assume  that  all  the  pieces  of  waste,  with 
The  matter  in  dispute  Was  neither  a  ques-  respect  lo  which  evidence  was  received, 
tiun  of  tenure  nor  of  custom,  as  to  which  lay  on  the  sidi;s  of  a  road  or  roads  ler- 
some  nice  distinctions  are  taken  by  For-  minatin^  in  a  larije  common.  They 
rescue,  J.,  in'  DuUe  of  Somerset  v.  were,  however,  of  opinion  that  evidence 
France,  'fhat  proof  of  llie  manner  in  was  admissihiu  of  grants  of  parcels  of 
which  a  particular  trade  is  carried  oa  one  and  the  same  waste,  lying  on  both 
at  one  place,  is  evidence  as  to  the  course  sides  of  the  road,  although  liie  continui- 
of  that  f)arlicular  trade  in  another  ty  of  the  waste  was  interrupted  for  ii 
place.  Noble  v.  Kennavvay,  2  Doug,  sliort  distance  by  the  intervention  of 
610.  houses.     The  same  princijtle    is  rucogni- 

(1)  .Tones  v.  Williams,  2  HI.  ^  We\.  sed  in  Tyrwhitt  v.  Wynne,  2  li.  Ik.  A. 
331,  where  the  nature  of  this  kind  of  .'if)  I,  where  leases  were  ri'jecierJ  on  .ic- 
evidence  is  explained  by  I'arke,  B.,  count  of  no  previous  proof  IxMMg  given 
see  F,vann  v.  Butt,  Jv.  B.  tlii.   '1'.    1837.  that  the  lor.iin  in  (/no  was  part  of  n  hr- 

(2)  2  Bing.  N.  C.  10  J.      7  liing.  332,  ger  district  to  which  ihusc  leasts  applied. 


o 


G 


442  On  Preswnjptive  Evidei^ce.  [Ch.  20. 

Exchequer  Chamber,  upon  a  question  whether  a  piece  of  waste 
land  between  a  highway  and  inclosure  belonged  to  the  plain- 
tiff, the  owner  of  the  adjoining  inclosure,  or  to  the  lord  of  the 
manor,  that  the  lord  might  give  evidence  of  grants  by  him  of 
waste  land  terminating  in  a  common,  between  the  road  and 
the  inclosures  of  other  persons  at  a  distance  from  the  spot 
claimed  by  the  plaintill";  but  that  such  evidence  must  be 
confined  to  the  waste  adjoining  the  road  which  passed  by  the 
spot  so  claimed.  * 

The  case  of  Sir-  T.  Stanley  y.  White,  (3)  may  here  be 
mentioned  as  a  leading  authority  upon  this  subject.  This 
was  an  action  of  trespass  for  cutting  down  the  plaintiff's  trees  ; 
the  defendant  pleaded  his  soil  and  freehold  in  the  close  upon 
which  the  trees  were  growing.  The  plaintiff  replied,  that 
the  trees  were  his  trees  and  freehold.  It  appeared  on  the  tri- 
al, that  the  trees  in  question  grew  in  a  woody  belt  of  consid- 
erable extent,  entire  and  undivided,  which  encircled  the  plain- 
tiff"'s  manor,  and  lay  contiguous  to  a  number  of  closes  belong- 
ing to  several  owners,  one  of  which  closes  was  that  of  the  de- 
fendant.   Evidence  was  admitted  of  several  acts  of  ownership, 

[  *487  ]  in  different  *parts  of  the  belt,  by  those  under  whom  the  plain- 
tiff claimed,  which  had  been  acquiesced  in  by  the  owners  of 
the  adjoining  land.  And  the  Court  of  King's  Bench  after- 
wards, on  a  motion  for  a  new  trial,  adjudging  the  evidence  to 
have  been  properly  admitted,  as  evidence  of  the  general  right 
through  the  whole  extent  of  such  entire  undivided  inclosure, 
which  might  be  presumed  to  have  belonged  formerly  to  one 
owner.  This  appears  to  be  the  true  principle,  on  which  the 
proposed  evidence,  in  that  case,  was  admissible.  For,  gener- 
ally speaking,  acts  of  ownership,  submitted  to  by  the  holder 
of  one  portion  of  land,  cannot  be  proof  that  the  person  exer- 
cising them  has  any  right  to  the  adjoining  land.  (1) 

Inquiry  in         Tliougli  it  is  a  general  rule,   that  a  custom  of  tithing,  &c. 

hla^i^on."^""  in  one  parish  will  not  be  evidence  of  a  custom  in  another,  yet 
such  an  inquiry  may  sometimes  be  very  proper  in  cross-exam- 
ination. Thus,  in  an  action  by  a  rector  for  tithes,  where  the 
point  in  issue  is,  whether  there  exists  a  modus  of  a  certain 
sum  of  money  for  a  particular  farm  in  a  township  within  the 
parish,  the  defendant  will  not,  in  general,  be  allowed  to  inquire, 
whether  other  farms  in  the  same  township  are  not  subject  to 
the  same  payment.  But  where  a  modus  is  alleged  on  one 
side,  it  may  be  relevant  on  the  other  side  to  make  an  inquiry 
of  this  nature,  for  the  purpose  of  shewing  that  such  payments 
cannot  be  a  modus,  consistently  with  the  evidence  which 
has  been  previously  adduced.     This  was  adjudged  to  be  ad- 

(S)  14  East,  332,     See  also  Bryan  v.     Goldfinch,  1  B.  ^^  C.  218,  219. 
Winwood,    1    Taunt.    208.     Hollis    v.         (1)  See  1  Barn.  4"  Cress.   218,   222. 


Sect.  2. J       On  the  Relevancy  of  Presumptions.  443 

missible  in  the  case  of  Blundell  v.  Howard.  (2)  The  ques- 
tion there  was  not  put  by  the  defendant  with  a  view  of  sup- 
porting the  modus  set  up  by  him,  but  was  put  by  the  plaintiff, 
in  order  to  shew  that  this  and  similar  payments  by  tlie  occu- 
piers of  different  tenements  were  merely  portions  of  a  sum  in 
gross  paid  throughout  the  township  by  way  of  composition, 
and  could  not  be  a  modus,  since  the  ecclesiastical  surveys, 
*which  had  been  produced  on  the  part  of  the  rector,  were  en-  [  *4SS  ] 
tirely  silent  as  to  any  modus  co-extensive  with  the  township. 

The  character  of  the  parties  to  a  civil  suit  affords,  in  gen-  Ev''|\ence 
eral,  such  a  weak  and  vague  inference  as  to  the  truth  of  points  ter. 
in  issue  between  them,  that  it  is  not  usual  to  admit  evidence  civil  suits. 
of  this  description.  Thus,  in  an  action  of  ejectment  by  an 
heir  at  law,  to  set  aside  a  will  for  fraud  and  imposition  com- 
mitted by  the  defendant,  witnesses  cannot  be  examined  to 
the  defendant's  good  character.  (1)  So,  on  the  trial  of  an  in- 
formation against  the  defendant  for  keeping  false  weights 
where  it  was  proposed  to  call  witnesses  on  behalf  of  his  char- 
acter, Eyre,  C.  B.,  ruled  that  such  evidence  was  not  admissi- 
ble in  a  civil  suit.  (2)  (a)  "  The  otfence  imputed  is  not,"  he 
said,  "  in  the  shape  of  a  crime.  To  admit  such  evidence 
would  be  contrary  to  the  true  line  of  distinction,  which  is  this, 
that  in  a  direct  prosecution  for  a  crime,  evidence  of  character 
is  admissible,  but  when  the  prosecution  is  not  directly  for  the 
crime,  but  for  the  penalty,  it  is  not.  If  evidence  to  character 
were  admissible  in  such  a  case  as  this,  it  would  be  necessary 
to  try  character  in  every  charge  of  fraud  upon  the  Excise  and 
Custom-house  laws." 

Where,  in  a  civil  suit,  character  is  a  matter  in  issue,   there  Character 
the  ev^idence  of  it  ceases  to  be  of  a  circumstantial  nature,  and 
there  can  be  no  objection  to  receiving  it.     Various  questions, 
however,   have  arisen  in  civil  suits  as  to  the  point,    whether 

(2)  1  Maule  &  Selw.  292.    See  Rex  prisoner's  expressions  concerning  him; 
».  Slallard,  7  C.  .^  P.  263,  wherean  in-         (I)  Goodriglit  d.  Farr   v.    Hicks,    B. 

quiry  as  to  what  other  persons    had   said  N.  1'.  296.     II  N.  P.  298. 
of  the   prosecutor   became    relevant   on         (2)   Attorney  (Jen.  v.  Bowman,  2    B. 

account    of  an   inquiry    respecting    the  Sr  P.  532. 


(a)  See  the  observations  of  Hoffman,  J.,  1  Hall,  417;  Fowler  v.  iEtna  Ins. 
Co.,  G  Cowen,  G73 ;  Converse  v.  Stow,  ',]  Conn.  3-25 ;  Ilumpiirey  v.  Hum- 
phrey, 7  id.  IKi;  Norton  v.  Warner,  9  id.  172;  PoUer  v.  Webb,  G  Greenl. 
14;  Gough  V.  St.  John,  IG  Wend.  G4G. 

WherfTa  will  was  soiin^lit  lo  bo  set  aside  on  the  ffround  of  improper  in- 
fluence, tlie  court  admitted  proof  that  persons  combined  to  influence  tiie 
testator  were  women  of  bad  ciiaracter.  K3  S.  &  R.  32.'].  So,  where  proof 
had  been  admitted  to  show  improper  influence  of  one  of  the  devisees,  proof 
to  uphold  tiie  ciiaracter  of  such  devisee  was  admitted.  .'>  id.  207.  So,  in 
Ruan  V.  Perry,  3  Caines  R.  120,  in  a  case  where  defendant  is  cliar<red  with 
gross  fraud,  it  was  considered  that  the  good  character  of  the  defendant  wa.s 
admissible. 


444  On  Presumptive  Evidence.  [Ch.  20. 

the  character  of  the  parties,  or  of  a  third  person  was  directly 

in  issue  or  not. 

Adultery.         i^^  actions  for  adultery  or  seduction,  the  wife's  or  daughter's 

general    conduct,  if  not  their  general    character  in  regard  to 

chastity,  is  directly  in  issue  ;  and  accordingly,   it  seems  that 

general    evidence  of  bad  character  is   admissible  in  such   ac- 

Defama-      tious  ;  (3)  («)  Avhorcas  in  actions  for   defamation,  it   appears, 

r"*4S9  1  *3.ccording  to  the  later  authorities,   that  general  evidence  of 

^  -^  the  plaintiff's  good  or  bad  character  is  irrelevant.  (!)(/>)      In 

(3)  Dodd  ?•.  Norris,   3    Campb.    .519.  dence  of  general  conduct,   is  receivable, 

Gardiner  v.  Tadis,  1  Selw.  N.    I\  25. —  eillier  wliere  tbe  general  issue  is  pleaded, 

Roberts  v.  IMaisten,  B.  N.  V.  296.     El-  or   wliere  tbero  are  pleas  of  juslificiition. 
sam  p.  Faucelt,  2  Esp.   2G2.     As    to  the         (1)  Cornwall  t).  Richardson,  11.  &  M. 

husband's    bad    character,    Bromly    v.  305.     Stuart  u.  Lovell,  2  St.  93.     .fones 

WalUce,  4Esp.    237.     The    aulhoritie.<i  r,  Stevens,  11  Trice,  235.     2   St.  93;  2 

rather  imply,   than    directly    shew,  that  Cainph.    251.     Waithmao   v.   Weaver, 

general  hearsay  evidence  of  bad  charac-  D.  Sf  R.,  N.  P.  C.  10. 
ter,  as  distinguished    from   positive    evi- 

[a)  In  Norton  v.  Warner,  9  Conn.  172,  defendant  offered  to  prove  in  miti- 
gation of  damages  in  an  action  of  criminal  conversation,  that  tlie  plaintiff 
was  in  habits  of  beastly  intoxication,  and  sustained  the  character  of  a  drunk- 
ard ;  but  the  court  overruled  the  evidence,  saying — "In  the  case  before  us, 
the  plaititiff's  general  character  was  not  in  issue;  hut  his  character  as  a 
husband  was." 

In  an  action  for  breacli  of  promise  of  marriage,  held,  that  defendant  sliall 
not  be  permitted  to  give  iter  bad  character  in  evidence,  in  mitigation  of 
damages;  the  court  saying — "When,  after  a  promise  of  marriage,  a  woman 
is  seduced  and  deserted  by  her  lover,  in  consequence  of  wliich  she  acquires 
a  bad  character,  he  shall  not  be  permitted  to  avail  himself  of  that  character, 
in  mitigation  of  damages,  in  an  action  brought  by  her  for  the  injury  arising 
from  the  breach  of  his  promise  to  marry  her."  Boynton  v.  Kellogg,  3  Mass. 
189. 

(6)  Evidence  of  character  in  defamation.  The  plaintifPs  bad  character  was 
considered  admissible  in  Goodbread  v.  Ledbetter,  1  D.  &  B.  12;  2  Cowen, 
81 1 ;  2  Hayw.  222  ;  11  J.  R.  38 ;  1  M.  &  S.  284  ;  1  N.  &  M'Cord,  2(58  ;  id. 
511;  3  Pick.  376.  But  a  general  report  in  the  country  that  plaintiff  was 
guilty  of  the  offence  charged,  was  held  to  be  inadmissible.  5  Watts,  439; 
6  Mass.  514.     But  see  5  Ohio,  225 ;  1  Blackf  371. 

Plaintiff  may  give  his  good  character  in  evidence  in  cases  where  tiiere  is 
a  plea  of  justification  of  the  truth  of  the  words.  Harding  v.  Brooks,  5  Pick. 
244;  4  Rawle,  290.  And  if  his  character  be  generally  bad,  indeppndent  of 
the  slander  of  which  he  complains,  the  jury  may  consider  it.  For  the  worth  of 
a  man's  general  reputation  among  his  fellow-citizens  may  entitle  him  to 
laro-e  damages  for  an  attempt  to  injure  it;  which  he  ouofht  not  to  obtain  if 
his^character  is  of  little  value  in  society.     Wolcott  v.  Hall,  6  Mass.  514. 

There  is  a  difference  in  the  decisions  upon  the  question  whether  the 
plaintiff  can  give  evidence  in  support  of  his  character,  until  it  is  attacked 
by  the  defendant.  The  practice  in  New  York  upholds  the  negative;  and 
the  fact  that  a  justification  has  been  pleaded,  makes  no  difference  in  the 
rule.  Shipman  r.  Burrows,  1  Hall.  309;  8  Wend.  602;  and  see  Converse  v. 
Stow,  3  Conn.  325,  to  the  same  point.  But  see  4  Conn.  42.  S.  C.  And  Har- 
dinfT  I).  Brooks,  5  Pick.  244,  is  directly  opposed  to  the  decision  in  New  York. 

In  Beehler  v.  Steever,  2  Whar.  R.  313,  it  was  held,  that  any  defence, 
■which  does  not  amount  to  a  justification  may  be  given  in  evidence,  in  mitiga- 
tion of  damages,  in  an  action  of  slander. 

Defendant  cannot  prove  particular  facts  by  way  of  attacking  plaintiff's 
character;  for  the  plaintiff  cannot  be  prepared  to  disprove  facts  of  which 


Sect.  2.]      On  ike  Relevancy  of  Presumptions.  445 

actions  for  adultery  or  seduction,  general  evidence  of  the  good  Sctiuction. 
character  of  llie  wife  or  daughter  is  admissible,  where  the  de- 
fendant has  endeavoured   to  impeach   it  by  general   evidence 
upon  cross-examination,    or  by  calling  witnesses;  (2)  but   it 
may  be  doubted,  whether  the  plaintitf  in  reply  can  give  gen- 
eral   good  character  in  evidence,    where  the  defendant's  evi- 
dence has  not  been  general,  but  has  related  to  particular  in- 
stances,   especially   where  the    imputations  are  made   in  the 
course  of  the  daughter's  cross-examination,  who  has  therefore 
an  opportunity  of   explaining   them  away   upon    re-examina- 
tion. (3)  (a)     It  seems  that,  according  to  the  later  authorities,  3,31;^.;^ 
evidence  of  the  plaintiff's  bad   character  is  not  admissible  in  p/oseeu- 
an  action  for  a  malicious  prosecution.  (4)  "'^"• 

In  criminal  matters,  evidence  of  character  frequently  affords  (^'riminai 
a  material  presumption  in  regard  to  the   perpetration  of  often-  '"^ 
ces.     Thus,  where  the  charge  is  that  of  rape,  or  of  an  assault  oVprose-*^ 
with  an  attempt  to  commit  a  rape,  the   general  bad  character  '^"i"''- 
of  the  prosecutrix  may,  under  the  circumstances  of   particular 
cases,  afford  a  just  inference  as  to  the  probability  of  her  hav- 

(2)  Bamfield  v.  Massey,  1  Camp,  evidence.  See  Rex  r.  Clarke,  2  St. 
460.     Dodd  ?'.   Norris,  3  Camp.  519.  242,  where  general  evidence   of  cliarac- 

(3)  Bamtield  i.  Massey  1  Camp,  ter  was  received  aftpr  the  prosecutrix's 
400.  Uodd  V.  Norris,  3  Camp.  519.  character  had  been  impeached  upon  her 
Bate  v.    Hill,    1    C.    &.    P    100.     See  cross-examination. 

King  u.  Francis,  3  Esp.  116.     It  may  be         (4)  The    evidence    was   admitted    by 

observed,   that  it  is    often    impossible  to  Lord  Kenyon,  in  Rodguer    %i.    Tadmire, 

give  a  satisfactory    answer   to   a    charge  2  Esp.  721;  rejected    by   Wood,  B.,    in 

unexpectedly  made,    except   by    general  Newsam  r.  Carr,  2  St.  70. 


he  has  had  no  notice.  3  Pick.  37G.  Nor  can  defendant  be  permitted  to 
jrive  evidence  of  common  report  that  the  plaintiff  had  been  guilty  of  the 
crime  which  tiie  words  import,  nor  tiiat  he  had  been  accused  by  a  particular 
individual  of  the  crime  charged  ;  although  he  pleads  the  truth  of  the  words 
spoken  in  justification.  Wolcott  v.  Hall,  6  Mass.  514;  4  Wend.  059;  8  id. 
002.  The  plaintiff  could  have  no  notice  from  the  pleadings  to  meet  this 
evidence;  and  when  regularly  seeking  redress  for  an  injury  from  the  de- 
fendant, he  might  be  overwhelmed  by  particular  scandal,  Avfijch  could  not 
be  traced  to  any  author;  or  if  it  could,  might  be  disproved.  The  evidence 
of  such  reports  would  therefore  be  extremely  oppressive  to  the  plaintiff,  and 
would  encourage  slander  in  the  country,  by  leading  people  to  suppose  that 
they  were  excusable  in  relating  scandal,  if  they  were  not  the  authors  of  it. 
By  Parsons,  C.  J.  id. 

[a]  Witnesses  cannot  be  examined  on  the  part  of  the  plaintiff  as  to  the 
general  character  of  the  seduced  for  chastity,  until  evidence  of  general  bad 
character  has  been  adduced  by  the  defendant.  3  Penn.  R.  .52.  But  in  the 
case  of  the  State  v.  De  Wolfe,  8  Conn.  93,  which  was  an  indictment  for  an 
attempt  to  commit  a  rape,  and  the  circumstances  being  peculiar,  the  court 
admitted  witnesses  to  prove  the  character  of  the  witness  injured  for  truth, 
to  be  good.  And  Daggett,  J.,  observes  : — "  It  would  not  be  going  too  far, 
perhaps,  to  say  that  the  general  character  of  the  witness,  who  is  the  victim 
of  the  outrage,  in  j)rosccutions  for  rape,  and  attempts  to  commit  a  rape,  may 
always  be  shown.  Our  books  tell  us,  that  if  the  witness,  in  these  cases,  bo 
of  good  fame,  it  greatly  strengthens  her  testimony ;  if  of  evil  fame,  it  is 
thereby  lessened." 


446  Oh  Presumptive  Evidence.  [Cli.  20. 

ing  coDsentecl  to  the  commission  of  the  act  for  which  the  pris- 
oner is  indicted.  Accordingly,  upon  the  trial  of  indictments 
lor  such  otfences,  evidence  is  admissible,  on  the  part  of  the 
[  *490  ]  prisoner,  *that  the  woman  bore  a  notoriously  bad  character  for 
want  of  chastity  and  common  decency.  (1)  (a)  It  appears  al- 
so, that,  at  least,  upon  trials  for  rape,  evidence  is  admissible, 
that  the  woman  had  been  before  criminally  connected  with 
the  prisoner.  (2)  But  it  seems  that  evidence  of  particular 
facts  cannot,  in  general,  be  received  to  impeach  the  chastity 
of  the  woman;  as,  that,  previously  to  the  commission  of  the 
offence,  she  had  a  criminal  connection  with  other  persons.  (3) 
It  has  been  held,  the  woman  in  a  prosecution  for  rape  is  not 
bound  to  answer  questions  tending  to  criminate  and  disgrace 
herself;  as,  whether  she  had  not  before  connection  with  oth- 
er persons,  or  with  a  particular  person.  (4) 
ofprison"  I^^  in^\s  for  felony  and  high  treason,  and  in  trials  also  for 
er.  (b)        misdemeanors,  (where  the  direct  object  of  the    prosecution  is 

(1)  InRex  «.  CUrke,  2  St.  244.—  amination.  Rex.  v.  Hodgson,  R.  A"  R- 
This  is  stated  by  Ilolroyd,  J.,  to  be  tiie  211,  on  the  alleged  ground  that  the  pros- 
law  as  well  upon  indictments  for  an  ecutrix  could  not  be  prepared  to  answer 
assault  with  intent  to  commit  a  rape,  evidence  of  particular  facts.  Perhaps  it 
as  for  the  capital  charge;  and  it  is  not  may  be  considered  that  the  question  of 
necessary  that  the  woman  should  have  the  woman's  rhastity  is  not  directly  in 
been  previously  interrogated  on  the  sub-  issue  upon  such  charges,  as  it  is  in  ac- 
j'ect.     Jbid.  tions  for  i;rhn.  con.  and  seduction.    The 

(2)  2  St.  Ev.  216,  citing  a  case  before  determination  of  this  question  may,  how- 
Wood,  B.,  York  Sum.  Ass.  1812.  ever,  afford  a    material    inference  as    to 

(3)  PerHolroyd,  J.,  in  Rex  v.  Clarke,  the  truth  of  the  charge;  and  the  alleged 
2  St.  244.  Mr.  Justice  Holroyd  also  objection  to  the  evidence  is  in  some  de- 
ruled,  that  the  woman's  answers  as  to  gree  obviated  by  the  power,  as  in  ac- 
particular  facts  would  be  conclusive;  but  tions  of  seduction,  of  producing  general 
it  is  to  be  observed,  that    this  is  treating  evidence  of  good  character  in  reply. 

the  question  as    merely    discrediting    the  (4)  Rex  «  Hodgson,    R.  &    R.    211. 

witness,  and  not  as  relevant  to  the  issue.  It  may  be  observed,   that   the    questions 

Vide    infra,   part    3,    examination    of  do  not  merely  tend  to  discredit  the    wit- 

wimesses.     The  same  Judge  also  admit-  ness,  but  are  also  relevant  to  the  issue. — 

ted  evidence  of  the  woman's  conduct  and  Vide 'pa.rt  3.     Examination  of    Wit- 

situalion  since  the  commission   of  speci-  nesses. 
fie  felonies  admitted  by  her  in   cross-ex- 


[a]  See  the  case  of  Rogers  v.  Moore,  10  Conn.  R.  13.  It  has  been  held 
that  the  credit  of  a  female  witness  may  properly  be  impeached,  by  proving' 
her  to  be  a  common  prostitute.  14  Mass.  ,387  ;  2  Dev.  R.  209.  These  de- 
cisions, however,  seem  questionable.     13  J,  R.  504. 

(6)  Character  in  felony  and  high  treason,  A  prisoner  ought  to  be  per- 
mitted to  give  in  evidence  his  general  character  in  all  cases  ;  for  why  should 
it  be  evidence  in  a  capital  case,  and  not  in  cases  of  an  inferior  degree  ?  In 
doubtful  cases,  a  good  general  character,  clearly  established,  ouglit  to  have 
weight  with  a  jury  ;  and  it  ought  not  to  prevail  against  the  positive  testimo- 
ny of  credible  witnesses.  Whenever  the  defendant  chooses  to  call  wit- 
nesses to  prove  his  general  character  to  be  good,  the  prosecutor  may  offer 
witnesses  to  disprove  tlieir  testimony.  But  it  is  not  competent  for  the  prose- 
cutor to  go  into  enquiry,  until  the  defendant  has  voluntarily  put  his  charac- 
ter in  issue ;  and  in  such  cases  there  can  be  no  examination  as  to  particular 
facts.    By  Parsons,  C.  J.,  in  2  Mass.  R.  317. 


Sect.  2.J      On  the  Relevcuicy  of  Presumptions.  447 

to  punish  the  ofTence,)  the  prisoner  is  always  permitted  to  call 
witnesses  to  his  general  character  ;  and  in  every  case  of  doubt; 
proof  of  good  character  will  be  entitled  to  great  weight.    The 
inquiry  as  to  the  prisoner's  general  character  ought  manifestly 
to  bear  some  analogy  and  reference  to  the  nature  of  the  charge 
against  him.   'On  a  charge  of  stealing,  it  would  be  irrelevant 
and  absurd  to  inquire  into  the  prisoner's  loyalty  or  humanity  ; 
on  a  *charge  of  high  treason,  it  would  be  equally  absurd  to  in-  [  *491  1         ~ 
quire    into  his  honesty    and  punctuality  in  private    dealings.  Upon  whai     ^«7< 
Such  evidence  relates  to  principles  of  moral  conduct,   which,  ''°""^' 
however  they  might  operate  on  other  occasions,  would  not  be 
likely  to  operate  on  that  which  alone  is  the  subject  of  inqui- 
ry ;  it  would  not  afford  the  least  presumption,  that  the  prison- 
er might  not   have     been    tempted  to  commit    the  crime    for 
which  he  is  tried,  and  is  therefore    totally  inapplicable  to  the 
point  in  question.'  The  inquiry  must  also  be  as  to  the  general  General 
character  :  for  it  is  general    character  alone,  which  can  afford  character, 
any  test  of  general   conduct,  or  raise  a  presumption  that  the 
person,  who  had  maintained  a  fair  reputation    down  to  a  cer- 
tain period,  would  not  then  begin  to  act  a  dishonest  unworthy 
part.     Proof  oi  particular  transactions,  in  which  the  defendant 
may  have  been  concerned,    is  not  admissible,  as   evidence  of 
his  general  good  character.     What,  then,  is    evidence  of  gen- 
eral  character  ?      The  best  medium  of  proof  is,  by   shewing 
how  the  person  stands  in  general  estimation  ;  proof  that  he  is 
reputed  to  be  honest,  is  evidence  of  his  character^for  honesty, 
and  the  species  of  evidence  most  properly  resorted  to  in  such 
inquiries.     It  frequently  occurs,  indeed,  that  witnesses,  after  Particular 
speaking  to  the  general    opinion   of  the    prisoner's    character,  ^'^^^' 

state  their  personal   experience   and   opinion  of  his  honesty  ; 

but  when  ^his  statement  is  admitted,  it  is  rather    from  favour 

to  the  msoner,  Hian  strictly  as  evidence  of  general  charac- 
ter.  (1  j^Tncases  where  the  intention  forms  a  principal  ingre- 
dient in  the  offence,  a  wider  scope  is  allowed.  On  a  charge 
of  murder,  for  instance,  expressions  of  good  will  and  acts  of 
kindness  on  the  part  of  the  prisoner  towards  the  deceased,  are 
always  considered  important  evidence,  as  shewing  what  was 
his  general  disposition  towards  the  deceased,  from  which  the 
jury  may  be  led  to  conclude,  that  his  intention  could  not  have 
been  what  the  charge  imputes. 

It  may,  perhaps,    be  thought   that  proof  of  bad   character.  Character, 
tliough  it  be  not  receivable  according  to  the  rules  of  evidence,  ^''^'^'''^ "'' 
would  afford  almost  as  reasonable  an  inference  in  favour  of  a 
prisoner's  guilt  in  doubtful  cases,  as  evidence  of  good  charac- 
ter *conveys  in  favour  of  his  innocence  ;  that  the  testimony,  as  r  */^(\o  1 
to  the   general  character  of  a  prisoner,   is,  in  most  instances,  ^  ' 

extremely   vague ;  and  even  supposing  the  excellence  of  a 

(1)  See  31  Howell,  190,  310. 


448 


On  Presumptive  Evidence. 


[Ch.  20. 


Praclice. 


prisoner's  character,  till  within  a  short  time  before  the  charge, 
to  bo  clearly  established,  the  inference  as  to  his  innocence  is 
not  of  a  very  cogent  nature.  It  is  also  to  be  considered,  that 
witnesses  to  character  do  not  incur  any  risk  of  an  indictment 
for  perjury. 

It  is  not  the  practice  to  cross-examine  witnesses  to  charac- 
ter, (1)  or  to  make  the  calling  of  them  a  ground  for  addressing 
the  jury  on  the  part  of  the  prosecution  ;  though  the  practice 
in  these  respects  is  not  imperative,  and,  in  particular  instan- 
ces, it  may  be  deviated  from  with  propriety.  (2)  It  is  express- 
ly provided  by  the  statute  6  &  7  W.  4,  c.  Ill,  that  if  upon 
the  trial  of  any  person  for  felony,  such  person  shall  give  evi- 
dence of  good  character,  it  shall  he  lawful  for  the  prosecutor, 
in  answer  thereto,  to  give  evidence  of  a  conviction  of  such 
person  for  a  previous  felony,  and  the  jury  shall  inquire  con- 
cerning such  previous  conviction,  at  the  same  time  that  they 
inquire  concerning  the  subsequent  lelony. 

In  criminal  cases,  it  is  peculiarly  the  duty  of  Courts  of  Jus- 
tice to  prevent  evidence  being  given  which  would  support  a 
charge  against  the  prisoner,  of  which  he  is  not  previously  ap- 
prised, under  the  pretext  of  it's  affording  some  presumption  as 
to  the  offence  which  is  the  subject  of  the  indictment.  In  trea- 
son, therefore,  no  evidence  is  to  be  admitted  of  any  overt  act 
that  is  not  expressly  laid  in  the  indictment.  This  was  the 
rule  at  common  law  :  and  it  is  again  prescribed  and  enforced 
by  the  statute  of  W.  3,  which  contains  an  express  provi^sipn  to 
that  effect,  (3)  in  consequence  of  some  encroachments  that 
had  been  made  in  several  state  prosecutions.  (4)  The  mean- 
ing of  the  rule  is,  not  that  the  whole  detail  of  facts  should  be 
set  forth,  but  that  no  overt  act,  amounting  to  a  distinct  inde- 
J  *403  ]  pendent  charge,  *though  falling  under  the  same  head  of  trea- 
son, shall  be  given  in  evidence,  unless  it  be  exprcss^^laid  in 
the  indictment  ;  but  still,  if  it  conduce  to  the  proot  or  any  of 
the  overt  acts  which  are  laid,  it  may  be  admitted  as  evidence 
of  such  overt  acts.  (1)  With  this  view,  the  declarations  of 
the  prisoner,  and  seditious  language  used  by  him,  are  clearly 
admissible  in  evidence,  as  explaining  his  conduct,  and  shew- 
ing the  nature  and  object  of  the  conspiracy.  (2)     And  acts- of 


Presump 
tioiis  in 
criminal 
cases. 


Treason. 


Proof  of 
overt  acts. 


(1)  Rex  V.  Hodgki.-=s,  7  C.  S,-  P.  29S, 
unless  llie  prosecutor  has  some  distinct 
charge  to  which  to  cross-examine  the 
witness. 

(2)  7  C.  ^-  P.  676.  Rex  v.  Stannard, 
7  C.  &  P.  673.  That  a  right  of  reply 
is  oiven  as  to  the  whole  case,  Rex  v. 
Whiting,  7  C.  8,-  P.  771. 

(3)  7  W.  3,  c.  3,  s.  8. 

(4)  Foster,  Cr.  L.  245,  246. 


(1)  LI.  9,  246.  Vaughan's  case,  5 
St.  Tr.  2  fol.  ed.  S.  C.  13  Howell's  St. 
Tr.  453.  Deacon's  case,  9  St.  Tr.  8 
fol.  ed.  S.  C.  15  Howell's  St.  Tr.  747. 

(2)  Rex  V.  Watson,  2  StarUie,  N.  P. 
C.  134.  So  on  an  indictment  for  send- 
ing a  threatenmg  letter,  a  subsequent  let- 
It'V  from  the  prisoner,  explanatory  of 
that  slated  on  the  record,  is  admissible. 
Robinson's  case,  2   East's  P.  C.    1112, 


Sect.  2.]      Oil  the  Relevancy  of  Presumptions.  449 

treason,  tending  to  prove  the  overt  acts  charged,  though  com- 
mitted in  a  foreign  country,  may  be  given  in  evidence.  (3) 

On  the  trial  of  an  indictment  for  burglary  and  larceny,  (4)  Burglary, 
it  appeared  upon  the  evidence,  that  the  prisoners  might  have 
entered  the  house  before  it  was  dark,  and  that  they  had  not 
taken  any  part  of  the  goods  at  the  time  when  they  were  dis- 
covered in  the  house,  upon  v/hich  the  counsel  for  the  prosecu- 
tion proposed  to  give  evidence  of  a  larceny  in  the  house,  com- 
mitted by  the  prisoners  on  a  preceding  day  :  but  the  Court 
rejected  the  evidence,  on  the  ground  that  it  tended  to  prove  a 
felony  of  a  totally  distinct  kind,  which  had  no  reference  to 
the  subject-matter  of  tlie  prosecution ;  the  prisoners  were, 
therefore,  acquitted  on  this  charge,  but  were  afterwards  indict- 
ed for  the  other  offence,  and  convicted. 

But  although  it  is  usual  to  confine  the  prosecutor  to  one  '^^^^'■*J 
single  act  of  felony,  yet,  when  the  character  of  the  particular 
act  charged  against  the  prisoner  is  to  be  collected  from  other 
acts  done  by  him,  all  of  them  constituting  one  entire  transac- 
tion, or  mutually  explanatory  of  each  other,  it  is  discretionary 
in  the  Judge  to  allow  the  prosecutor  to  go  into  the  whole.  (5) 
Thus,  *in  a  case  of  robbery,  where  the  prisoners  came  with  [  *494  ] 
a  mob  to  the  prosecutor's  house,  and  one  of  them  ,went  up  to 
the  prosecutor,  and  civilly  advised  him  to  give  them  some- 
thing to  get  rid  of  them — to  shew  that  this  v/as  not  bona  fide 
advice,  but  in  reality  a  mode  of  robbing  the  prosecutor,  evi- 
dence was  allowed  to  be  given  of  other  demands  of  money 
made  by  the  same  mob  at  other  houses,  at  different  periods  of 
the  same  day,  both  before  and  after  the  particular  transaction, 
when  any  of  the  prisoners  were  present.  (1)  A  case  is  cited 
by  Lord  Ellenborough,  in  Whileifs  case,  where  a  man  com- 
mitted three  burglaries  in  one  night,  and  stole  a  shirt  in  one 
place  ^nd  left  it  at  another,  and  they  were  all  so  connected, 
that  the  Court  heard  the  history  of  the  three  burglaries.  (2)     . 

In  offences  which  consist  in  the  guilty  knowledge  or  inten-  ^\°°^°^ 

^  .  .     .      ^  1  ■  .  other  acts 

tion  01  a  prisoner,  it  is  irequently  necessary  to  examine  into  as  evidence 
collateral  facts,   in  order  to  arrive  at  a  just  conclusion  upon  a  onntennon 
matter,  which  must  necessarily  depend  altogether  on  presump- 
tive evidence.     Thus,  in  a  prosecution   for  uttering  a  bank- 
note,  bill,  or  promissory  note,    with  knowledge  of  it's  being 
forged,  proof  that  the  prisoner   had  uttered  other  forged  notes 

(3)   Post.  Cr.  L.  10.     Deacon's  case,  ings.     Mogg's  case,  4  C.    8f   P.   364. — 

9  St.  Tr.  8,  fbl.  ed.  S.  C.    15    llowdl's  Hex  «.  Moore,  2  C.  &  P.    235.     Rex  r. 

St.  Tr.  747.  l-ong,  6  C.  S,-  P.  179.  firing    three  ri('l<s 

(4;   Rex  V.  Vandercoinb  and  ANbott,  for  wliicli    there    were   se[jarute    indict- 

2  Leach,  Cr.  Ca.  816.  iiient--. 

(5)   Kllis'a  case,  6  B.  4- C.   145,  sev-         (1)   Winkworih's    case,    4    C.    f{  P. 

eral  purloinnig-s    from   a    till.     Egerlon's  444,  upon   a  special   coiiirni-ision,   after 

case,  R.  ^  R.  376,  an  infamous  accusa-  comtnunicaling  with  Lord  Teiiterdcn. 
tion  on  the  following  evening.    Vowke'a  (2)   2  Leacli,  985.      1  New  R.  92. 

case,  R.  &  R.  531,  two  malicious  shoot- 

57 


450  On  Presumptive  Evidence.  [Ch.  20. 

or  bills,  whether  of  the  same  kind  or  of  a  different  kind,  (3) 
or  that  he  had  other  forged  notes  or  bills  in  his  possession,  (4) 
is  clearly  admissible,  as  shewing  that  he  knew  the  note  or  bill 
utioring:  jj^  question  *to  be  forged.  And  on  a  prosecution  for  uttering 
or  mon-  Counterfeit  money,  the  fact  of  the  prisoner  having  other  coun- 
*y-^'"*  ,  terfeit  money  upon  him,  or  of  his  having  uttered  other  pieces 
i-  J  of  money  of  the  same  kind,  is,  according  to  common  practice, 

evidence  of  his  having  known  that  the  money,  which  he  is 
charged  with  uttering,  was  counterfeit ;  (1)  and  proof  of  the 
prisoner's  conduct  in  such  other  utterings,  (as.  for  example, 
that  he  passed  by  different  names,)  is,  for  the  same  reason, 
clearly  admissible.  (2)  Such  evidence,  far  from  being  foreign 
to  the  point  in  issue,  is  extremely  material ;  for  the  head  of 
the  offence  charged  upon  the  prisoner  is,  that  he  did  the  act 
with  knowledge :  and  it  would  seldom  be  possible  to  ascer- 
tain, under  what  circumstances  the  uttering  took  place, 
(whether  from  ignorance,  or  with  an  intention  to  commit  a 
fraud,)  without  inquiring  into  the  demeanor  of  the  prisoner  in 
the  course  of  other  transactions.  The  more  detached  in  point 
of  time  the  previous  utterings  are,  the  less  relation  they  will 
bear  to  that  stated  in  the  indictment  ;  and  the  question  then 
would  be,  whether  the  evidence  is  sufficient  to  warrant  the 
inference  of  knowledge  at  one  time,  from  such  particular  trans- 
actions at  another  time.  (3)    That  may  be  thought  a  question 

(3)  Rex  r.  Wylie,  1  New  Rep.  92.  I.ewin,  106,  where  the  point  was  doubt- 
Rex  ».  Ball,  1  Camp.  324.  Russ.  4"  ed  and  the  evidence  received;  tiie  notes 
Ry.  Cr.  Ca.  132,  S.  C.  That  it  is  not  had  been  destroyed.  It  would  seem 
necessary  that  the  other  forged  notes  tiiat  presumptive  evidence  of  forgery,  as 
should  be  of  the  same  description,  see  tliat  the  prisoner  destroyed  the  note, 
KirUwood's  case,  Lewin's  Cr.  Ca.    103.  ought  to  be  received. 

Per   Uullock,    B.,    in    Hodgson's  case,  (1)  New    Rep.    95.       1    Russ.    on 

Lewin's   Cr.    Ca.   103.     The  point  was  Crimes,  85. 

doubted  in  Millard's  case,  R.  &  R.  245.  (2)  See  Rex  v.  Millard,  R.  Sr  R.  245. 

n.  jud.     See  Bayley    on   Bills,    4th    ed.  Bayley    on    Bills,  449.       Tatfershail's 

450.  In  Rex  v.  Balls,  Mo.  Cr.  Ca.  470,  case,    cited    per    Lord    Ellenborough,  2 

on  an  indictment  for  engraving  the  notes  Leach,  984,  Phillips's  case,  Lewin,  105. 

of  a  foreign  prince,  evidence  of  engrav-  (3)   1  New  Rep.  94.     It  would  seem 

ing  llie  notes  of  another  foreign  prince  that  the  evidence  was  not  the  less  adniis- 

was  held   admissible.  silile,    because  the    other    forged    notes 

(4)  Ilex  V.  Hough,  Russ.  &  Ry.  Cr.  are  the  subject,  at  the  time,  of  other  in- 
Ca.  120.  Rex  v.  Rowley,  Bayley  on  dictnients;  tiiough  doubts  have  lieen  en- 
Bills,  447.  The  forgery  of  the  other  tertained  as  to  this  point.  Kirkwood's 
notes  or  bills  must  be  distinctly  proved;  case,  Lewin's  Cr.  Ca.  103.  Hodgson's 
and  they  ought  to  be  produced.  Rex  v.  case,  Lewin's  Cr.  Ca.  Tbid.  Rex  r. 
Millard,  Bayley  on  Bills,  449.  Russ.  ^  Smith,  2  C.  ,^  P.  633.  Rex  r.  Long,  6 
Ry.  Cr.  Ca.  245,  S.  C.     Phillips's  case,  C.  &  P.  179. 

(a)  See  Weed  v.  Carpenter,  4  Wend.  219,  where  defendant  was  sued  as 
endorser,  and  set  up  as  a  defence  that  the  endorsement  was  forged,  it  was 
considered  competent  for  the  plaintiff  to  prove  that  defendant  Avas  knowing 
to  the  habit  of  the  individual  who  wrote  the  endorsement  of  putting  his 
name  to  other  notes ;  and  although  the  same  had  come  to  judgment  and 
execution  he  had  never  disavowed,  until  the  individual  so  using  his  name 
had  absconded. 


Sect.  2.]       On  the  Relevancy  of  Prestimptions.  451 

to  be  left,  in  most  instances,  at  least,  to  the  jury.  But  what- 
ever weight  the  evidence  may  have,  (which  is  quite  another 
consideration,)  it  is,  in  general,  admissible  ;  not  as  evidence  of 
another  ofience,  but  simply  of  another  transaction,  in  which 
the  prisoner  was  engaged,  affording  a  reasonable  presumption 
as  to  his  conduct,  with  regard  to  the  offence  with  which  he  is 
charged. 

It  may  be  thought  that  collateral  evidence  of  facts,  occur-  Subse- 

•'  '^  '  queiil  facts. 

rmg  *soon  after  the  oflence  with  which  a  prisoner  is  charged,  r  *496  l 
may  sometimes  afibrd  as  reasonable  a  presumption  of  guilty 
knowledge,  as  when  the  facts  occurred  at  some  time  before 
the  offence.  Upon  an  indictment  for  uttering  a  bill  with  a 
forged  acceptance,  knowing  it  to  be  forged,  it  was  proposed  to 
give  in  evidence  other  forged  bills,  precisely  similar,  with  the 
same  drawers'  and  acceptors'  names,  uttered  by  the  prisoner 
about  a  month  after  the  uttering  of  the  bill  mentioned  in  the 
indictment.  Mr,  Justice  Gaselee,  after  consulting  Alexander, 
C.  B.,  was  disposed  to  allow  the  evidence  to  be  received,  but 
said  that  he  would  reserve  the  point  for  the  opinion  of  the 
Judges  ;  upon  which  the  counsel  for  the  prosecution  declined 
to  press  the  evidence.  (1)  It  is  to  be  observed,  however,  in 
this  case,  that  the  similarity  of  the  notes  shewed,  that  the}'' 
originated  with  one  person ;  and,  in  a  previous  case  of  an  in- 
dictment for  uttering  a  forged  bank  note,  where  the  prosecu- 
tors offered  to  prove  the  uttering  of  another  forged  note,  five 
v/eeks  after  the  uttering  which  was  the  subject  of  the  indict- 
ment, the  Court,  (consisting  of  Ellenborough,  C.  J.,  Thomp- 
son, C.  B.,  and  Lawrence,  J.,)  held  that  the  evidence  was  not 
admissible,  unless  the  latter  uttering  was  in  some  way  con- 
nected with  the  principal  case,  or  unless  it  could  be  shewn 
that  the  notes  were  of  the  same  manufacture.  (2) 

Upon  other  proceedings,  besides  prosecutions  for  forgery,  or 
the  uttering  of  forged  notes  or  counterfeit  coin,  it  is  frequently 
material  to  give  evidence  of  other  acts,  not  in  issue,  in  order 
to  raise  a  presumption  as  to  the  intent  of  the  prisoner,  in  com- 
mitting the  act  for  which  he  is  indicted.     Thus,  upon  an  in-  Malicious 

T  r  T-ii  •  •  ^  II  1  sllOOling. 

dictment  for  maliciously  shooting,  evidence  was  allowed  to 
be  given,  that  the  prisoner,  about  a  quarter  of  an  hour  before 
the  shooting  with  which  he  was  charged,  intentionally  shot 
at  the  prosecutor,  (3)  the  whole  being  one  continued  transac- 
tion in  the  prosecution  of  the  malicious  intent  of  the  prisoner. 

It  haf?  been  held,  that  evidence  of  what  ing  letter,  or  of  publishing  a  libel,   acts 

the  prisoner  has   said  at  a  time  coilater-  done  by  the  prisoner  subsequently  to  the 

al  to   a    former   uttering,  to    shew    that  oil'ence  cliarged,  are  admissible  to  sliew 

what  he  said  at  tlie  time  of  a  former  ut-  the    animus.       Vide    infra.     In    liUe 

tering  was  false,  is  not  receivable,    I'hil-  manner,   subsequent  felonies    have  been 

lips's  case,   Levvin,  lOfi.  given  in  evidence  to  explain   a  preceding 

(1)  Smith's  case,  4  C.  .!^  P.   411.  one,  Egerton's   case  and     Winkworlh's 

(2)  Taverner's  case,  4  C  ^  I*.    413,  case,  supra,  p.  493,  494. 

n.     On  a  charge  for  sending   a  threaten-         (3;  Vowkos's  case,  R.  &  R.  531. 


452  On  Presumptive  Evidence.  [Ch.  20. 

Threaten-     gg,  *on  a  charge  for  sciiclinG;  a  threatciiins;  letter,  other  letters 

jn<r  letter.  .  ^      .  .  ,  . 

r'*497  1  "^vritteii  by  the  prisoner,  both  before  and  alter  that  lor  which 
he  is  indicted,  may  be  read  in  evidence,  for  the  purpose  of  ex- 
Libel,  planation.  (1)  And,  in  like  manner,  in  actions  for  libel  or 
slander,  it  has  been  held  that  other  libels  or  words  may  be  giv- 
en in  evidence,  occurring  both  before  and  after  the  subject  of 
the  action,  in  order  to  shew  the  animus  of  the  defend- 
ant. (2) (a) 

(1)  Rpbinson'a  case,  2  East's  P.   C.  P.  436.     Plunkett  u.  ^obett,  5  Esp.  186; 

1110;  2  Leach,  749.  2  Camp.    73,    n.;  3   C.    &   P.    312;   2 

(2)Charlton  D.  Barret, Peake,  22.  Rex  Camp.  72,  73,  n.;   5    Esp.    136;    2    St. 

V.  Pearce,  Peake,  75,   124,  1C6.     Has-  457;  3  B.  .V  C.  113;   R.  Hf  M.   422.— 

tell  V.  Macquesta,  1  Catnp.  49,  n.     Stu-  Proof  of    collateral    matters    in    actions 

art  '.'.  Lovel,  2  St.  93,  Bubsequent  publi-  for  malicious  prosecution,  to  shew   inal- 

cations.      Lord   Ellenborough    observed,  ice,  Caddy  v.  Barlow,    1    IMann.  &  Ry. 

that  the  law  would  be  the  same  upon  an  275,  1  Sir.  691. 
indictment.     Chubb  v.  VVestiey,  6  C.  St 


(a)  See  the  case  of  Wallis  v.  Mease,  3  Binn.  R.  54G,  wKere  it  was  held 
in  an  action  of  slander  that  the  plaintiff  after  provintr  the  words  laid  in  the 
declaration,  rnay  give  in  evidence  other  words,  not  actionable,  by  way  of 
showing  the  malice  of  the  defendant.  Though  Tilghman,  C.  J.,  said,  if  it 
were  not  so  settled,  he  should  doubt  the  propriety  pf  such  evidence,  because 
it  may  take  the  defendant  by  surprise.  He  added — "Nor  does  it  seem  clear, 
that  the  malice  of  the  defendant's  heart  at  the  time  of  speaking  the  words 
for  which  the  suit  is  brought,  can  he  fairly  inferred  from  words  spoken  at  a 
subsequent  time,  no  way  relating  to  those  which  are  the  cause  of  action. 
But  assuming  as  I  must  do,  as  a  principle,  that  subsetjuent  words  may  be 
given  in  evidence,  I  can  see  no  reason  for  a  distinction  between  words  ac- 
tionable and  not  actionable,  or  between  words  spoken  before,  and  words 
spoken  after." 

In  Bodwell  v.  Swan,  3  Pick.  876,  evidence  of  words  spoken  after  the  first 
and  since  the  commencement  of  the  suit,  which  were  ot  similar  import  with 
those  charged  in  the  declaration,  were  admitted ;  they  were  to  be  considered 
as  a  repetition.  The  learned  chief  justice  admitted,  that  it  was  a  difficult 
question.  He  observes — "  According  to  Mansfield,  C.  J.,  (in  Finnerty  v. 
Tipper,  2  Camp.  75)  a  repetition  of  the  same  words,  or  the  same  libel,  may 
be  proved,  to  show  that  the  first  was  not  heedless  but  malicious  ;  and  we 
think  that  so  far  we  may  go  ;  but  we  cannot  agree,  that  if  a  man  sue  another 
for  calling  him  a  thief,  he  may  prove  that  at  another  time  afterwards  he 
called  him  a  murderer.  Plaintiff  was  admitted  to  prove  words  spoken  two 
years  before  the  comtnencement  of  the  action.  Inman  v.  Foster,  8  Wend. 
602. 

Any  circumstances  tending  to  show  the  want  of  malice  seems  to  be  ad- 
missible for  the  purpose  of  mitigating  the  darnages.  id.  573.  It  is  different, 
if  the  facts  and  circumstances  offered  only  tend  to  prove  a  justification.  13 
id.  9. 

Libels  by  plaintiff.  See  Child  v.  Homer,  13  Pick.  503.  The  case  of  Tar- 
pley  V.  Blabey,  2  Bing.  N.  C.  437  decides,  that  in  order  to  the  admission  of 
evidence  of  libels  by  the  plaintiff  in  mitigation  of  damages,  it  must  be 
shown  with  precision  that  such  libels  relate  to  the  libels  by  the  defendant. 

Previous  publications  of  a  plaintiff  are  not  admissible  by  way  of  showing 
a  provocation  in  palliation  of  the  libel,  unless  they  be  so  recent  as  to  afford 
a  presumption  that  the  libel  complained  of  was  published  under  the  excite- 
■  ment  thereby  produced.  Beardesley  v.  Maynard,  4  Wend.  33G ;  7  id.  56  S. 
C.  And  where  defendant  offers  evidence  of  previous  publications,  the  judge 
at  the  trial  may  require  the  publications  Jirst  to  be  submitted  to  his  perusal, 


Sect.  2.]       On  the  Relevancy  of  Presiwiptions.  453 

Upon  an  indictment  for  receiving  stolen  goods,  which  had  Keceivcrs. 
been  all  stolen  at  the  same  time,  but  received  at  diflerent 
times,  the  prosecutor  was  put  to  his  election  of  some  particu- 
lar act  of  receiving  ;  but  it  was  held,  that  evidence  might 
have  been  given  of  the  prisoner  having  in  his  possession,  and 
of  having  pledged  and  disposed  of,  other  articles  of  the  stolen 
property,  in  order  to  show  his  guilty  knowledge,  as  all  the 
])roperty  had  been  stolen  from  the  same  persons,  and  had  been 
brought  to  the  prisoner  by  the  prisoner  indicted  with  him  for 
the  theft.  (3) 

On  an  indictment  against  several  prisoners,  for  a  conspiracy  Conspiracy 
to  carry  on  the  business  of  common  cheats,  proof  is  admissible  '°ciieai. 
that  the  prisoners,  at  a  different  time,  made  similar  represen- 
tations to  other  tradesmen  besides  those  named  in  the  rec- 
ord, (4)  cumulative  instances  being  necessary  to  prove  the  of- 
fence. The  same  sort  of  evidence  is  allowed  in  a  prosecution 
for  barratry,  and,  as  before  mentioned,  in  prosecutions  for  the 

(3)  Dunn's  case^  Mo.   Cr.    Ca.    l.'jO.  to  utterings  subsequent  to  that  for  whrch 

The  report  contains  a  marginal  note,   in-  a  prisoner  is  indicted.     That  tlie  possea- 

dicating  that  the  evidence  had  been  con-  sion  of  property  may  afford  presumptive 

fined  to  acts  previous    to    that   on  which  evidence   of  the    commission    of  arson, 

the  prosecutor   had    elected   to   proceed.  Hickman's  case,  2  Eagt'.s  P.  C.  1035. 
The  same  point  has  occurred   in   respect         (4)  Rex  v.  RobertSj  1  Camp.  400. 


so  that  he  may  in  his  discretion  determine  uoon  their  admissibility.  Gould 
V.  Weed,  12  id.  J2.  And  wlien  previous  publications  by  plaintiff  tend  to 
explain  the  purport  and  object  of  the  libel  of  defendant,  or  when  they  tend 
to  mitifrate  its  severity  they  are  admissible  in  evidence,  id.  But  distinct 
and  independent  libels  cannot  be  set  off  or  siven  in  evidence  in  mitigation 
of  damages.  Child  v.  Homer,  13  Pick.  503.  See  the  case  of  Watson  v. 
Churchill,  5  Day,  256. 

The  misconduct  of  the  plaintiff  in  leading  the  defendant  to  believe  that 
he  was  giiilty  of  the  slander  imputed  may  be  given  in  evidence  in  mitigation 
of  damages,  where  defendant  pleads  only  the  general  issue.  Alderman  v. 
French,  1  Pick.  1.  See  also  the  observations  of  Cli.  J.  Parsons  in  3  Mass. 
546.  But  if  the  defendant  in  his  plea  justifies  the  words  as  true,  he  pre- 
cludes himself  from  any  attempt  to  mitigate  the  damages  by  any  of  those 
facts  or  circumstances,  id.  But  if  he  fails  in  proving  a  justification,  defend- 
ant may  notwithstanding  give  plaintiff's  general  bad  character  in  evidence 
under  the  general  issue.    5  Ohio,  225. 

In  Alexander  v.  Harris,  6  Mumf.  465,  evidence  was  offered  that  before  the 
speaking  the  words  imputed  to  the  defendant,  the  plaintiff  was  in  the  habit 
of  vilifying,  insulting,  and  provoking  the  defendant,  and  his  family ;  but  the 
court  rejected  the  evidence.  But  in  Goodbread  v.  Ledbetter,  1  D.  &  B.  12, 
it  was  held,  that  the  conduct  of  the  plaintiff  at  the  time  of  speaking  the 
Avords,  were  admissible  in  evidence,  for  they  are  a  part  of  the  fact  and  es- 
sential to  the  proper  understanding  of  it. 

Advice  of  counsel  fairly  obtained  has  been  held  sufficient  to  justify  or 
excuse  the  plaintiff  in  conuncncing  a  groundless  .action.  Stone  v.  Swift,  4 
Pick.  389.  But  it  must  appear  that  the  opinion  of  counsel  was  fairly  asked 
upon  the  real  facts,  and  the  whole  facts.  Blunt  v.  Little,  3  Mason,  102. 
Professional  advice  is  but  evidence  to  go  to  the  jury — defendant  cannot 
shelter  himself  under  that  advice,  against  evidence  of  purposed  malice,  or 
from  malice  which  may  fairly  be  inferred.  Turner  v.  Walker,  3  G.  &l  J. 
377. 


454  On  Presiiinptive  Evidetice.  [Cli.  20. 

[  *498  ]  greatest  of  *all  offences,  high  treason.  The  same  kind  of 
Munief.  proof  is  Constantly  admitted  in  trials  for  murder  ;  in  which 
former  grudges  and  antecedent  menaces  are  evidence  of  the 
prisoner's  malice  against  the  deceased. 
Conspiracy  On  the  trial  of  an  indictment  against  several  persons  for  a 
*"^'"''  conspiracy",  in  unlawfully  assembling  for  the  pur))Ose  of  excit- 
ing discontent  and  disalfection,  it  would  be  irrelevant  to  in- 
quire, on  behalf  of  the  defendants,  what  the  conduct  of  those 
employed  to  disperse  the  meeting  may  have  been  at  the  time 
of  the  dispersion,  if  no  evidence  has  been  previously  offered, 
on  the  part  of  the  prosecution  as  to  the  conduct  of  the  meet- 
ing at  that  time  or  subsequently ;  for  the  conduct  of  the  dis- 
persers  of  the  meeting  can  have  no  bearing  on  the  intention 
and  object  of  the  meeting  itself ;  in  other  words,  it  is  irrele- 
vant to  the  matters  in  issue.  (1)  In  such  a  prosecution,  as  the 
material  points  for  the  consideration  of  the  jury  are,  the  gener- 
al character  and  intention  of  the  assembly,  and  the  particular 
case  of  each  defendant  as  connected  with  that  general  charac- 
ter, it  would  be  relevant  to  prove,  on  the  part  of  the  prosecu- 
tion, that  bodies  of  men  came  from  different  parts  of  the  coun- 
try to  attend  the  meeting,  arranged  and  organized  in  the  same 
manner,  and  acting  in  concert.  It  would  be  relevant  also  to 
shew,  that  early  on  the  day  of  the  meeting,  in  a  spot  at  some 
distance  from  the  place  of  meeting,  (from  which  very  spot  a 
body  of  men  came  afterwards  to  the  place  of  meeting,)  a  great 
number  of  persons,  so  organized,  had  assembled,  and  had  there 
conducted  themselves  in  a  disloyal,  riotous,  or  seditious  man- 
ner. (2)  Further,  it  would  be  relevant,  on  such  a  trial,  to 
produce  in  evidence  certain  resolutions,  which  had  been  pro- 
posed by  one  of  the  defendants,  at  a  large  assembly  in  anoth- 
er part  of  the  country  very  recently  held  for  the  same  profess- 
ed object  and  purpose  as  were  avowed  by  the  meeting  in  ques- 
tion, and  that  the  defendant  acted  at  both  meetings  as  presi- 
dent or  chairman  ;  in  a  question  of  intention,  as  this  is,  it  is 
r  *499  1  most  clearly  relevant  to  *shew  against  that  individual,  that  at 
a  similiar  meeting,  held  for  an  object  professedly  similar,  such 
matters  had  passed  under  his  immediate  auspices.  (1) 

Upon  trials  of  indictments  for  offences  involving  a  charge 
of  conspiracy,  much  evidence  is  usually  produced,  which  does 
not  relate  to  the  particular  conduct  of  a  prisoner.  Such  evi- 
dence, however,  is  not  necessarily  of  a  presumptive  nature. 
Thus  it  is  usual  to  give  general  evidence  of  a  conspiracy,  pre- 
viously to  showing  the  connection  of  the  prisoner  with  it.  (2) 
It  has  been  seen,  in  treating  of  hearsay  evidence,  that  the  acts 

(1)  Rex  ».  Hunt,  3  Barn.  &  Aid.  (1)  Rex  r.  Hunt,  3  Barn.  &  Aid.  568, 
566,  577.  572. 

(2)  Rex  V.  Hunt,  3  Barn.  ^  Aid.  (2)  The  Queen's  case,  2  B.  S,-  B, 
573,  574.  302,  and  State  Trials,  passiw. 


Sect.  2.]       On  the  Relevancy  of  Presumptions.  455 

and  declarations  of  other  conspirators  in  the  absence  of  the 
prisoner  are  admissible  against  him  ;  (3)  it  has  been  seen  also, 
in  treating  of  admissions,  that  the  prisoner  may  be  atfected  by 
writings  from  other  persons,  which  came  into  his  custody  be- 
fore his  apprehension.  In  these  cases  the  evidence  is  of  a  di- 
rect nature,  applying  to  the  acts  in  furtherance  of  a  conspiracy 
and  not  circumstantial,  as  proving  only  collateral  circumstan- 
ces from  which  these  acts  are  to  be  inferred. 

It  would  not  be  allowable  to  shew,  on  the  trial  of  an  indict-  ^'^"•^''f'. 

'  .    .  disposition, 

ment,  that  the  prisoner  has  a  general  disposition  to  commit 
the  same  kind  of  offence  as  that  charged  against  him.  Thus, 
in  a  prosecution  for  an  infamous  crime,  an  admission  by  the 
prisoner,  that  he  had  committed  such  an  ofience  at  another 
time,  and  with  another  person,  and  that  he  had  a  tendency  to 
such  practices,  ought  not  to  be  received  in  evidence.  (4) 

As,  in  trials  for  conspiracies,    whatever  the  prisoner    may  ^'"'j'  ^nd 
have  done   or  said,  at  any  meeting  alleged  to  have  been  held  tions  of 
in   pursuance  of  the    conspiracy,  is  admissible    in  evidence  P7^""«f. 
against  him,  on  the  part  oi  the  prosecution  ;  so,  on  the  other  deuce  for 
hand,  any  other  part  of  his  conduct  at  the  same  meetings,  will  ^""* 
be  allowed  to  be  proved  on  his  behalf ;  for  the   intention  and 
design  of  the  party,  at  a  particular  time,  are  best  explained  by 
a  complete  view  of  every  *part  of  his  conduct   at  that  time,  [  *500  ] 
and  not  merely  from  the  proof  of  a  single  and  insulated  act  or 
declaration.     In  the  case  of  Walke}'  and  others,  (1)  who  were 
tried  for  a  conspiracy  to  overthrow  the  government,  evidence, 
having  been  produced,  on  the  part  of  the  prosecution,  to  shew 
that  the  conspiracy  existed  and  was  brought  into  overt-act  at 
meetings  in  the  presence  of  Walker,  the  counsel  for   the  pris- 
oners were  allowed  to  ask  a  witness,  whether,  at  any  of  these 
times,  he  had  ever  heard  Walker  utter  any  word  inconsistent 
with  the  duty  of  a  good  subject  ?    The  question  was  opposed, 
but  held  by  Mr.  Justice  Heath  to  be  admissible.      The  prison- 
er's  counsel  were  also  allowed,   in  the  same  case,  to   inquire 
into   the  general   declarations  of  the  prisoner  at  those  meet- 
ings ;  as,  whether  the  Avitness  had  heard  him  say  any  thing 
that  had  a  tendency  to  disturb  the  peace  of  the  kingdom  :  and 
(juestions  to  the  same  effect  were  put  to  many  other  witnesses 
111  succession. 

The  question,  in  the  case  last  cited,  was  expressly  confined,  !'■'"■'  "*"' 
and  so  required  by  the   Court    to    be,   to  the   conduct  of  the  pmved  a 
prisoner  at  those  particular  meetings,  which    had  been  previ-  s*'"*^  '''■"• 
ously  inquired  into  on  the  part  of  the   prosecution.     Proof  of 
what  the  prisoner  might  have  said  or  done  at  other  meetings,  or 
at  other  times,  unconnected  with  the  transactions  proved  against 

(3)  Vide  snpra,  \).  2\()  (1)  23    Howell,  1131,   and   see    31 

(4)  Rex  f.  Cole,  Mich.  Term,  ISIO,     IIowcH's  St.  Tr.  43. 
by  all  the  Judges,  MS. 


the 
ion 


456  On  Presumptive  Evidence.  [Ch.  20. 

him,  would  not  have  ](cen  admissible  evidence  in  his  favour. 
In  Lord  George  Gordon'' s  case,  (2)  a  witness  was  asked,  by 
the  prisoner's  counsel  on  cross-examination,  as  to  a  statement 
made  by  the  prisoner,  on  the  night  before  the  meeting  in  St. 
George's  Fields,  and  with  respect  to  which  meeting  much 
evidence  had  been  produced.  This  was  objected  to  ;  and  the 
Court  decided,  that  the  question  was  not  regular.  Lord  Mans- 
field held,  that  as  the  counsel  for  the  crown  had  given  evi- 
dence of  what  the  prisoner  said  at  the  meeting  upon  the 
29th  of  May,  the  counsel  for  the  prisoner  might  shew  the 
whole  connection  of  what  the  prisoner  said  besides  at  that 
meeting  ;  but  that  tb.ey  could  not  go  into  evidence  of  what 
he  had  said  on  the  antecedent  day.  And  in  Hanson''s 
case,  (3)  on  a  charge   for  promoting   a  riot,    the    counsel  for 

[  *501  j  *the  prisoner  was  not  allowed  to  prove  what  he  had  said  pri- 
vately to  a  friend,  previously  to  his  going  to  the  place  of  riot, 
respecting  his  motive  in  going  thither.  Many  other  cases 
might  be  cited  to  the  same  effect. 

H.  Tooke's  The  rule,  on  this  subject,  appears  to  have  been  extended 
much  beyond  the  line  here  laid  down,  on  the  trial  of  Home 
Tooke.  (1)  In  that  case,  several  publications  were  given  in 
evidence,  on  the  part  of  the  crown,  containing,  as  was  alleged, 
republican  opinions,  which  had  been  distributed  by  the  pris- 
oner during  the  period  assigned  for  the  existence  of  the  con- 
spiracy ;  and  this  evidence  was  much  relied  on,  as  shewing 
that  the  notion  of  a  reform,  which  was  expected  to  be  set  up 
by  the  prisoner  in  his  defence,  was  a  mere  pretext  to  cover 
treasonable  designs  :  to  repel  this  conclusion,  the  counsel  for 
the  prisoner  offered  in  evidence  a  book,  which  had  been  writ- 
ten by  the  prisoner  twelve  years  before,  on  the  subject  of  par- 
liamentary reform;  the  evidence  was  objected  to,  as  having 
no  relation  with  the  particular  transaction  in  question,  and  be- 
cause the  prisoner's  opinions,  whatever  they  were  formerly, 
might  have  afterwards  changed.  But  the  Lord  Chief  Justice 
Eyre  said,  that  the  question  was  not  whether  this  book  had  a 
reference  to  the  conspiracy  charged,  but  whether  it  had  not 
reference  to  the  proof  given  in  suj^port  of  the  charge  :  and  he 
thought  it  evidence  to  rebut  the  supposition,  that  the  reform 
of  parliament  was  a  pretence  made  by  the  prisoner.  The  book 
was  accordingly  received  in  evidence.  There  is  great  author- 
ity, however,  for  doubting,  whether  such  evidence  would,  on 
revision,  be  considered  strictly  admissible.  (2)     It    seems,  in- 

(2)  21  Howell's  St.  Tr.   542.  Lambert  and  Perry,  31  Howell's  St.  Tr. 

(3)  31  Howell's  t-t.  Tr.  4281.  355,  S.  C.  2  Campb.  N.  P.  C.     4()0._ 

(1)  1  East's  P.  C.  GI,  Guiney's  Re-  In  that  case,  whicli  was  on  the  trial  of 
port,  vol.  ii.  36.  25  Hovvell's  St.  Tr.  an  information  Tor  a  libel  in  a  newspaper, 
345,  S.  C.  it  was    held   that    the    defendant  liad   a 

(2)  See  the  observations  on  this  point  right  to  have  read  in  evidence  any  ex- 
by  Lord  Ellenborough,  C.  J.,  in  Rex  r.     tract   from    the  same   paper    connected 


Sect.  2.]      On  the  Relevancy  of  Presumptions.  A57 

deed,  reasonable,  if  some  other  acts  of  the  prisoner,  besides 
those  charged  in  the  indictment,  are  proved  against  him  for 
the  purpose  of  shewing  his  design  in  *the  affair  in  question,  [  *502  ] 
that  he  should  be  allowed  to  explain  those  acts  by  proof  of 
other  contemporaneous  particulars  of  his  conduct,  which  shew 
that  he  had  a  different  design  from  that  imputed  to  him.  But 
this  limitation  (namely,  that  such  other  particulars,  offered  in 
evidence  by  the  prisoner,  ought  to  be  contemporaneous  with 
those  proved  on  the  other  side,  or  at  least  confined  within  the 
same  limits  to  which  the  evidence  on  the  part  of  the  prosecu- 
tion is  subject,)  appears  to  be  just  and  necessary  ;  for,  other- 
wise, the  prisoner  would  be  at  liberty  to  take  the  whole  range 
of  his  life,  in  the  course  of  which  his  character  and  his  de- 
signs may  have  undergone  a  complete  change. 

In  Hardy's  case,  (1)  great  liberty  was  allowed  to  the  coun-  Hardy's 
sel  for  the  prisoner,  in  examining  into  particulars  of  his  con-  ^^^^' 
duct,  even  into  his  speculative  opinions  ;  and  perhaps  it  may 
be  questionable,  whether  the  rule  was  not  carried  to  it's  ut- 
most extent  in  that  case.  The  question  there  put  to  the  wit- 
ness was  this  ;  whether,  from  his  personal  acquaintance  with 
the  prisoner,  he  had  ever  heard  him  state  what  was  his  plan 
of  reform  ?  The  question  was  objected  to.  The  overt-act 
charged  was,  that  the  prisoner,  for  the  purpose  of  accomplish- 
ing the  treason  of  compassing  the  king's  death,  did  conspire 
with  others  to  call  a  convention  of  the  people,  in  order  that 
the  convention  might  depose  the  king ;  and  the  counsel  for 
the  prisoner  submitted,  that  for  the  purpose  of  shewing  that 
the  convention  was  intended  to  be  held,  not  with  the  design 
imputed  by  the  indictment,  but  with  an  innocent  design,  they 
might  go  into  evidence  of  what  the  prisoner  had  at  other  times 
declared,  inasmuch  as  the  counsel  for  the  prosecution  had 
gone  into  all  that  the  prisoner  had,  at  any  part  of  his  life,  de- 
clared touching  this  fact,  and  had  gone  also  into  evidence  of 
what  other  members  of  the  corresponding  societies  had  said. 
They  then  defended  the  question  by  an  able  argument,  in 
the  course  of  which  several  cases  were  *cited  from  the  state  [  *503  ] 
trials  ;  particularly  the  case  of  Lord  Russell,  the  one  which  Lord  Rus- 
came  nearest  in  principle  to  that  under  discussion,  where  the  ^'^  *  '^^^^' 
charge  against  the  prisoner  was  for  compassing  the  king's 
death,  and  the  overt-act  was,  consulting  to  raise  rebellion  and 
seize  the  king's  guards ;  and  Lord  Russell,  in  his  defence, 
called  many  witnesses  to  speak  to  his  affection  towards  the 
government,  and  his  detestation  of  risings  against  it ;  some  of 

with  the  subject  charged  as  libellous,  al-  (1)  24  Howell's  State  Trials,  1065 — 

though  disjoined   from    it  by    extraneous  1093.  See  trial  of  O'Coigly  and  O'Con- 

jnatter,  and  printed  in  a  different  chardc-  nor,  27  Howell's   State  Trial-i,   p.    31, 

lar.  and  31  Howell'B  St.  Tr.  189,  310. 

58 


458  On  Presumptive  Evidence.  [Ch.  20. 

the  witnesses  gave  evidence  of  his  conversations  and  senti- 
ments on  this  subject,   shewing  his  aversion  to  all  risings  of 
the  people  :  Dr.  Burnet  and  Dr.  Cox,  in  particular,  spoke  ful- 
ly to  this  point,   and  without  any  objection  either  from  the 
Court  or   from  the   counsel   for  the  prosecution.     After   the 
question  in  Hardy's  case  had  been   argued  at  some  length, 
Lord  Chief  Justice  Eyre  is  reported  to   have  thus  addressed 
himself  to  the  prisoner's  counsel,  (1)  "  I  do  not  know  wheth- 
er you  can  be  content  to  acquiesce  in  the  opinion  that  we  are 
inclined  to  form  upon  the  subject,  in  which  we  go  a  certain 
way  with  you.     Nothing  is  so  clear,    as  that  all  declarations 
which  apply  to  facts,    and  even  apply  to  the   particular  case 
that  is  charged,   though  the  intent  should  make  a  part  of  that 
charge,  are  evidence  against  a  prisoner,   and  are  not  evidence 
for  him.  because  the  presumption,  upon  which  declarations  are 
evidence,   is,  that   no  man   would  declare  any  thing  against 
himself,  unless  it  were  true  ;  but  that  every  man,  if  he  were 
in  difficulty,  or  in  apprehension  of  any  difficulty,  would  make 
declarations  for  himself.     Those  declarations,  if  offered  as  ev- 
idence, would  be  offered,    therefore,    upon  no  ground  which 
entitles  them  to  credit.     That  is  the  general  rule.     But  if  the 
question  be,  what  was  the  political  speculative  opinion  which 
this  man  entertained   touching  a  reform  of  parliament,  I  be- 
lieve we  all  think  that  opinion  may  very  well  be  learned  and 
discovered   by  the  conversations   which  he  has  held  at  any 
time  or  in  any  place."      The   question  afterwards  put  to  the 
witness   was,    whether,   before   the   time  of   the  convention 
which  was   imputed  to  the  prisoner,  he  had  ever  heard  from 
him  what  his  objects  were,  and  whether  he  had  at  all   mixed 
r  *504  1  himself  in  *that  business  ;  and,  in  answer,  the  witness  stated 
what  he  had  heard  from  the  prisoner   respecting  his  plan  of 
reform.  (1) 
irreievan-        With  rcspcct  to  quostions  for  the  purpose  of  making  a  prop- 
maiionr"*'  ^^  presumption  as  to  the  probability  of  a  witness  s]  caking  the 
truth  and   without  bias,  it  is  to  observed,    that  they  have  a 
more  obvious  tendency  to  lead  to  irrelevant  inquiries,   than 
those   which   have  been  the  subject  of  consideration  ;  they 
have  consequently  occasioned  distinct  rules  being  established 
in  regard  to  them.  These  rules  will  be  considered  in  the  third 
part  of  this  Work. 
Irreievan-        Bcsides  the  grouud  for  rejecting  evidence  on  account  of  the 
*^^rd 'to  ^^'  presumptions,  to  be  derived  from,  it  being  too  remote  from  the 

pleadings. 

(1)  42  Howell's  St.  Tr.  1094.  be  answerd,  was,  as  to  what  the  prison- 

(1)  24  Howell's  St.    Tr.  p.   1097.—  er  had  declared  lo  be  the   object  of  the 

Another    question,    which  is    stated  to  corresponding  societies.     This   question 

have  been  put  by  the  prisoner's   counsel  was  not  opposed.     Jhid.  p.  1101. 
to  one  of  the  witnesses,  and  allowed   to 


Sect.  2.]       On  the  Relevancy  of  Presumptions.  459 

subject  of  inquiry,  there  is  another  ground  for  it's  rejection  on 
account  of  irrelevancy,  viz.  that  the  pleadings  in  the  cause  do 
not  admit  of  it's  being  received.  The  cases  upon  this  exten- 
sive subject  have  turned  more  upon  the  effect  of  particular 
pleadings,  than  upon  the  general  principles  of  evidence. 


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